DIXON & ELLIOT

[2021] FamCAFC 27

FAMILY COURT OF AUSTRALIA

DIXON & ELLIOT [2021] FamCAFC 27

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the appellant seeks expedition of the hearing of his appeal – Where the matter commenced sometime in 1984 but was not then dealt with for in excess of 30 years  – Where the appellant is 81 years of age and is anxious to have the matter finalised as soon as possible given its extended history – Where it is not appropriate that another matter be removed from the April list to include this matter – The matter be listed as the first reserve in the April 2021 list and if not heard in that list it be expedited and  be listed with priority in the June 2021 sittings.

Family Law Act 1975 (Cth)

APPELLANT: Mr Dixon

RESPONDENT: Ms Elliot

FILE NUMBER: MLC 437 of 2018

APPEAL NUMBER: SOA 4 of 2021

DATE DELIVERED: 18 February 2021

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 18 February 2021

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 10 December 2020

LOWER COURT MNC: [2020] FamCA 1005

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Thompson

SOLICITOR FOR THE APPELLANT: Rickards Legal

COUNSEL FOR THE RESPONDENT: Mr B G Mylne

SOLICITOR FOR THE RESPONDENT: Turnbull Mylne

Orders

1. The hearing of this appeal be expedited such that it be listed as the first reserve in the Melbourne/Adelaide appeal sittings commencing on Monday 26 April 2021 NOTING THAT if it is able to be listed that the preferred dates in that week are Thursday 29 and Friday 30 April 2021.

2. In the event that the appeal is not able to be heard in the April 2021 sittings the hearing of the appeal be expedited further such that it be listed with priority in the Melbourne/Adelaide Full Court sittings commencing on Monday 21 June 2021.

3. The matter be referred to the Appeal Registrar to conduct a directions hearing at 11:00am on Tuesday 23 February 2021.

4. The costs of today be reserved.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dixon & Elliot has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)

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THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT ADELAIDE

Appeal Number: SOA 4 of 2021
File Number: MLC 437 of 2018

Mr Dixon

Appellant

And

Ms Elliot

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Before the court today is an Application in an Appeal filed by Mr Dixon (“the husband”) on 3 February 2021, seeking that the hearing of the appeal filed on 13 January 2021, against orders made by a judge of the Family Court of Australia on 16 December 2020 be expedited, and in particular, that the hearing be expedited such that it be included in the list of appeals to be heard in the Melbourne/Adelaide sittings commencing on Monday 26 April 2021.  On 3 February 2021 an affidavit was also filed in support of that application. 

2. The application is not opposed by Ms Elliot (“the wife”).

3. I have heard submissions from counsel for the husband in support of the application for expedition, and in a sense, they are compelling to the extent of what I am now told about the history of this matter.  The proceedings commenced sometime in 1984, but then, as counsel put it, they ended up in “a black hole”, not surfacing again until many, many years later; indeed, in excess of 30 years later.  Then, when the matter resurfaced, to use my phrase, the judge before whom the matter came determined that the trial should be listed on an expedited basis, but unfortunately that did not happen, in the sense that it still took several months before the judge allocated to hear the trial could attend to it.  Ultimately though the trial took place, and judgment was delivered in December 2020, with the final orders being made on 16 December 2020.

4. Apart from that, the matters that arise from the affidavit in support of the application are, that the husband is 81 years of age and he is, and this is not surprising, anxious to have the matter finalised as soon as possible, given the extended history that I have just referred to.

5. Thus, there are certainly sound reasons for the application for expedition. 

6. However, the difficulty that I have in expediting this appeal to be heard in the April sittings is that, on current indications, that list is full, and to list this appeal in that sittings might very well mean removing a matter which is listed there, or is targeted to be listed there.  That is a real issue, and the husband is, of course, not to know the circumstances of the appeals that are slated for that list.  I am in the position, as Administrative Head of the Appeal Division, and managing this list, to know that, and as I put quite bluntly to counsel, I am not prepared to remove any of the matters that are set to be listed in the April sittings in order to include this matter.  Those matters are at least equally, and some more deserving, of being heard in that sitting.

7. However, that said, I have explored with counsel other options, and one option that has arisen is to list this appeal as the first reserve in that April list, and I am quite prepared to do that, with a notation that if it is able to be listed because another matter drops out, or something happens with the list which is unknown at this point, that it be listed on 29 or 30 April 2021.

8. Failing it being heard in that list, the next sittings in Melbourne are in June 2021 and, in discussion with counsel, I have indicated that I would be prepared to direct that if the appeal was not heard in April, that it be given priority in the June list.  However, I am not in a position to direct that it be listed on a particular day, and I leave that to the appeal registrar as necessary.

9. The other matter I note is that the wife and her legal representatives are in Queensland, and the wife’s legal representative has raised some practical difficulties which would result if very short notice was given as to the listing of the appeal, and needing to have some certainty, if possible, as to a listing in June, if that is what transpires.  Those matters though can, and obviously will, be taken into account by the appeal registrar as necessary.

10. Thus, for those reasons, I am not prepared to expedite the hearing of the appeal to the April 2021 list.  I am though prepared to expedite it so that it becomes the first reserve in that list, and I am further able to expedite the hearing so that it is listed with priority in the June 2021 sittings, if it does not get reached in the April 2021 sittings.

I certify that the preceding ten (10) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 18 February 2021.

Associate: 

Date: 25 February 2021