Cleary and Ngoc

[2011] FamCAFC 25

FAMILY COURT OF AUSTRALIA

CLEARY & NGOC [2011] FamCAFC 25

FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – appeal from refusal of stay – appeal withdrawn.

APPELLANT: Mr Cleary

RESPONDENT: Ms Ngoc

FILE NUMBER: SA 77 of 2010

APPEAL NUMBER: ADC 5849 of 2007

DATE DELIVERED: 28 January 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 28 January 2011

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 15 September 2010

LOWER COURT MNC: [2010] FMCAfam 1163

REPRESENTATION

COUNSEL FOR THE APPELLANT: In person

COUNSEL FOR THE RESPONDENT: Ms Subramaniam

SOLICITOR FOR THE RESPONDENT: Ms Subramaniam

Orders by Consent

1. The Notice of Appeal filed on 28 September 2010 appealing against orders made by Federal Magistrate Simpson on 15 September 2010 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Cleary & Ngoc is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 77 of 2010
File Number: ADC 5849 of 2007

Mr Cleary

Appellant

And

Ms Ngoc

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a directions hearing in relation to an appeal filed by the father on 28 September 2010 against orders made by Federal Magistrate Simpson on 15 September 2010. 

2. The application before the Federal Magistrate at that time was an application to stay orders made by the Federal Magistrate on 31 August pending an appeal.  His Honour refused the stay and dismissed the application, and the father appeals against that order.

3. There is of course an appeal by Mr Cleary against the substantive orders made on 31 August 2010, and that appeal was filed on 10 September 2010.  That appeal is not formally before me today. 

4. I determined that it was appropriate to address the appeal against the refusal to stay as being prima facie a more pressing matter than the appeal against the substantive orders.  However, I have taken the opportunity to discuss with the wife’s counsel and Mr Cleary, the appeal against the substantive orders, and the juxtaposition of the two appeals.

5. I have indicated to the parties that my recommendation to the Chief Justice will be that the substantive appeal be heard by a single appeal judge, namely me.  I then could list that appeal for hearing in mid-April.  The importance of that is that the earliest I could hear the appeal against the refusal of the stay is mid-March, and doing the best I could, I probably would not be able to deliver a judgment in the matter until the end of March.

6. Thus, as can be seen, given that I can hear the substantive appeal in mid-April, there would seem to be little point in pursuing the appeal against the refusal to stay. 

7. Mr Cleary has seen the wisdom of that, and his firm position is that on the basis that the substantive appeal can be heard in mid-April, and on the basis of one other matter, which I will come to in a moment, he seeks to withdraw his appeal against the orders refusing the stay.

8. The other matter that I refer to is that one of the orders made by the Federal Magistrate on 31 August was for the child to attend a particular school.  That was a significant issue in the trial before the Federal Magistrate, namely, which school the child should attend.  The child is due to start school towards the end of April, early May, this year, and Mr Cleary has said to me that the issue of the child’s schooling is his major concern in this matter.  There are other issues which are the subject of his appeal against the orders made on 31 August, but that is the primary issue that he is concerned about.

9. I have indicated to Mr Cleary and the wife’s counsel, that if the substantive appeal is heard in mid‑April, then if I am able to, depending upon the submissions and my consideration of the matter at that time, I would look to give either an indication to the parties as to my position in relation to the appeal against the order as to where the child is to attend school, even though, of course, I would not be in position to provide full reasons, and I may not be in a position to indeed, make a formal order about that.  Mr Cleary is comfortable with that information, and that, coupled with the timing of the hearing of the substantive appeal, to repeat, has led him to seek to withdraw his appeal against the order refusing the stay.

10. Ms Subramaniam, who appears for the wife, has no difficulty with that course of action, and obviously, has no difficulty with the appeal against the refusal of the stay being dismissed. 

11. I will need to obtain a direction from the Chief Justice that that appeal can be heard by a single appeal judge, namely me, and then list that matter for directions.  I can give the parties an indication today as to when I propose to list that for directions, because I would be confident in receiving the direction from the Chief Justice that I have referred to.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 28 January 2011.

Associate: 

Date:  11 February 2011