EJK & TSL

[2006] FamCA 950

FAMILY COURT OF AUSTRALIA

EJK & TSL [2006] FamCA 950

APPEAL –  Refusal to Abridge Time and Expedite an Interim Hearing –  Where interim hearing listed in the period pending the hearing of the appeal rendering appeal point moot

APPEAL – COSTS – Where appeal should rightfully have been discontinued at date of interim hearing

Family Law Act 1975 (Cth) Part VII

Federal Proceedings (Costs) Act 1981 (Cth), ss 6, 9

APPELLANT: EJK

RESPONDENT: TSL

FILE NUMBER: MLF 3708 of 2004

APPEAL NUMBER: SA 49 of 2006

DATE DELIVERED: 21 September 2006

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bryant CJ, Faulks DCJ & Boland J

HEARING DATE: 21 September 2006

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 16 August 2006

LOWER COURT MNC: [2006] FamCA 891

REPRESENTATION

COUNSEL FOR THE APPELLANT:	Mr Wilson
SOLICITORS FOR THE APPELLANT:	Westminster Lawyers

COUNSEL FOR THE RESPONDENT:	Mr Geddes QC, with Ms Johns
SOLICITORS FOR THE RESPONDENT:	TressCox Lawyers

Orders

(1)That the appeal filed 17 August 2006 be dismissed.

(2)That the Court grants to the appellant mother in relation to the stay appeal, a costs certificate pursuant to the provisions of s 9(1) of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the stay appeal.

(3)That the Court grants to the respondent father, in relation to the stay appeal, a costs certificate pursuant to the provisions of s 6(1) of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by the respondent father in relation to the stay appeal.

(4)That the appellant mother pay to the respondent father the costs of the respondent father in relation to the substantive appeal as and from 19 September 2006.

(5)That the stay of the Orders of 16 August 2006 made by the Full Court in paragraph 3 of the Order made 21 August 2006 continue until 12 midnight on 21 September 2006 or until further Order of the Court.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA49 of 2006
File Number: MLF 3708 of 2004

EJK

Appellant

And

TSL

Respondent

REASONS FOR JUDGMENT

BRYANT CJ:

1. The matter before us today is what I have referred to as the substantive appeal of the appellant wife, filed 17 August 2006, against orders made by Dessau J on 16 August 2006. 

2. There are two parts to the appeal.  The first part relates to an appeal against the refusal by her Honour to grant a stay of her orders, the effect of which required the child, the subject of these proceedings to be returned to Korea.  The second part relates to an appeal against her Honour's decision refusing to grant an abridgment of time to enable the early and expeditious hearing of the wife's application for parenting orders. 

3. The first part of the appeal, that is the stay appeal, was dealt with as a matter of urgency by the Full Court on 21 August 2006 and was allowed insofar as it related to the refusal to stay the orders made on 16 August 2006.  The balance of the appeal was expedited and that is the appeal with which we are dealing today. 

4. The matter has a long and somewhat complex history which I do not need to traverse for the purpose of judgment today.  It was the subject of orders by Dessau J which went on appeal.  That appeal was dismissed by the Full Court on 9 August 2006.  The matter then returned to her Honour to make machinery orders which would enable the child JWL (also known as JUL) born 6 February 2001 to be repatriated to Korea.  Those orders were made on 16 August 2006 and are the orders that are the subject of the stay to which I have referred.

5. On 15 August 2006, the mother filed an application for parenting orders and in respect of those orders, expedition and an abridgment of time was sought before her Honour Justice Dessau on 16 August 2006 and refused.  Again that is the substance of the appeal with which we are dealing today.

6. In the time that has elapsed between the filing of the application for parenting orders on 15 August 2006 and the hearing of the substantive appeal today, the wife's application came on in the ordinary course for hearing before Mushin J on Monday, 18 September 2006.  It was adjourned pending the outcome of this appeal. The parties were advised that a judge was available to hear the adjourned application immediately upon the conclusion of this appeal.

7. The only remaining issue is the appeal against the decision on 16 August 2006 not to abridge time and expedite the application.  That application has now come on for hearing in the natural course.   The issue remaining to be dealt with in the appeal is now moot.  That much was conceded by counsel for the wife who offered before us to withdraw the appeal.  It seems to me, however, that the appeal could have been withdrawn earlier.  In my view, the wife's appeal against the orders of Dessau J, or at least the refusal to grant the orders, was properly brought and led to a successful outcome in relation to the stay appeal.

8. Had the matter not been listed on Monday, 18 September 2006 it may be that the substantive appeal would have led to a successful outcome as well.  However, once the matter was listed, the question of whether the abridgment was required became moot, and at that point it was open to the appellant wife to withdraw her appeal and prosecute the matter before a single judge on 18 September 2006.

9. In my view, in the circumstances, given that the issue is now moot, the appeal should be dismissed.

10. That raises then the costs of the proceedings. The appellant sought a costs certificate in relation to the stay appeal and the Full Court in dealing with the stay appeal reserved the question of costs certificates before us. Counsel for the appellant seeks a costs certificate pursuant to s 9(1) of the Federal Proceedings (Costs) Act 1981 (Cth) in relation to the stay appeal, and the respondent seeks a certificate pursuant to s 6(1). In my view, certificates to the appellant and the respondent in relation to the stay appeal should be granted.

11. In relation to the substantive appeal, which in my view should be dismissed, the respondent seeks an order for costs which is opposed by the appellant.   The order for costs is sought on the basis that once the matter was listed before a single judge, the question of an abridgment of time to have it listed became moot and at that point the appeal could and probably should have been withdrawn, at least if any question of costs was to be considered.  That being so, as the appeal was not withdrawn, in my view it is appropriate for the appellant to pay the respondent's costs of the substantive appeal from 19 September 2006, the first day on which it seems to me it would have been reasonable and appropriate to withdraw the appeal.

12. The next matter raised by the appellant is the question of whether prior to the matter coming back before a single judge, the Full Court should continue the stay of Dessau J's orders which it granted on 21 August 2006.  The appellant submits that the Full Court should continue the stay until such time as a single judge determines otherwise and submits that if the Full Court were to grant a stay, even for a shorter period, there might be pressure on a trial judge to take into account the time constraint.  It does not follow in my view that if the court took the latter course there would be pressure on a trial judge.  The trial judge who is hearing the matter has discretion whether to extend a stay or not, having regard to what matters are before him or her and the time in which those matters can be determined.  That is an everyday occurrence for trial judges. 

13. The respondent submits that once the appeal is dismissed there is no jurisdiction left to make any orders staying the proceedings for any length of time.  There is in my view much force in what the respondent says. 

14. However, in my view there should be a stay for a short period which is really to ensure that the matter can be brought before a trial judge as expeditiously as possible and that will, as I understand it, be today.  So that there is no hiatus, and in the interests of the administration of justice, I would therefore grant a stay until midnight tonight or until further order of the court.

15. The appeal should be dismissed and in my view the matter should be remitted to a single judge as soon as possible so that the judge can then deal with all issues which the parties wish to agitate in accordance with the principles in Part VII of the Family Law Act 1975 (Cth) (‘the Act’) and on the basis of any further evidence that the judge considers relevant.

16. There appear to be a number of issues which the parties may require to agitate, including on the wife's side, the question of whether and on what terms a stay of Dessau J's orders of 16 August 2006 should be granted or continued, and the issues raised in her application for parenting orders, including interim issues and whether any of Dessau J's orders should be varied or suspended pending a further hearing; on the husband's side, there are issues such as whether the wife's application should be summarily dismissed, and whether Dessau J's orders of 16 August 2006 should be given effect or varied to enable them to be given effect.

17. The trial judge will need to deal with these matters, and I make the point as well that the trial judge will be considering these matters in accordance with the amendments to Part VII of the Act that took effect on 1 July 2006.

18. Accordingly, the orders that I would make are as follows:

(6)That the appeal filed 17 August 2006 be dismissed.

(7)That the Court grants to the appellant mother in relation to the stay appeal, a costs certificate pursuant to the provisions of s 9(1) of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the stay appeal.

(8)That the Court grants to the respondent father, in relation to the stay appeal, a costs certificate pursuant to the provisions of s 6(1) of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by the respondent father in relation to the stay appeal.

(9)That the appellant mother pay to the respondent father the costs of the respondent father in relation to the substantive appeal as and from 19 September 2006.

(10)That the stay of the Orders of 16 August 2006 made by the Full Court in paragraph 3 of the Order made 21 August 2006 continue until 12 midnight on 21 September 2006 or until further Order of the Court.

1. It is noted that the application that was adjourned on Monday 18 September 2006 will be listed before Guest J today as soon as practicable after the rise of this Court.

FAULKS DCJ:

1. I agree with the orders proposed by her Honour and the reasons for it. I have nothing else to add.

BOLAND J:

1. I agree with her Honour the Chief Justice's reasons and orders and have nothing further to add.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Full Court.

Associate: 

Date:  3 October 2006