FEWSTER & DRAKE
[2015] FamCAFC 198
•21 October 2015
FAMILY COURT OF AUSTRALIA
| FEWSTER & DRAKE | [2015] FamCAFC 198 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the husband seeks to expedite an appeal against orders for the setting aside of a financial agreement and interim spousal maintenance – Whether the matter should be afforded priority to the detriment of other cases – Where the parties may suffer significant prejudice in the event that the appeal in relation to the validity of the financial agreement was determined in favour of the husband but after a final hearing in relation to the property proceedings – Appeal expedited. |
| Family Law Act 1975 (Cth): s 94(2D) Family Law Rules 2004 (Cth): r 12.10A |
| APPLICANT: | Mr Fewster |
| RESPONDENT: | Ms Drake |
| FILE NUMBER: | PAC | 3945 | of | 2014 |
| APPEAL NUMBER: | EA | 139 | of | 2015 |
| DATE DELIVERED: | 21 October 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 21 October 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 July 2015 |
| LOWER COURT MNC: | [2015] FamCA 602 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Barkus Doolan |
| SOLICITOR FOR THE RESPONDENT: | Armstrong Legal |
Orders
That the applicant husband’s Application for leave to appeal, and if leave is granted, the appeal itself from Orders 1 and 2 of the Orders made by the Honourable Justice Foster on 28 July 2015 be expedited.
That the costs of the applicant husband’s Application in an Appeal filed on 25 August 2015 be costs in the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fewster & Drake has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 139 of 2015
File Number: PAC 3945 of 2014
| Mr Fewster |
Applicant
And
| Ms Drake |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
By Application in an Appeal filed on 25 August 2015, Mr Fewster (“the husband”) seeks an expedited hearing of his appeal against orders made by Foster J on 28 July 2015.
The orders under appeal provide for the setting aside of a financial agreement pursuant to s 90(1)(d) of the Family Law Act 1975 (Cth) (“the Act”) and for the husband to pay Ms Drake (“the wife”) interim spousal maintenance in the amount of $1,500 per week until further order.
Relevant background
In order to give this application context, it is necessary to refer to some brief background facts. These are largely taken from his Honour’s reasons and the documents filed in this application.
The husband is currently 73 years of age.
The wife is currently 48 years of age.
The parties commenced cohabitation in 2004 and married in January 2006. Following their marriage, on 22 December 2006 they entered into a financial agreement pursuant to s 90C of the Act.
The parties separated on a final basis in May 2014. There are two children of the marriage, who are currently aged eight and six. The children live with the wife.
On 20 August 2014 the husband instituted parenting proceedings in the Federal Circuit Court. By way of her response the wife sought parenting orders, as well as orders in relation to child support departure, for the settlement of property and spousal maintenance. The husband sought that the wife’s application, insofar as it related to financial orders, be dismissed. Central to the resolution of the property application is the validity of the financial agreement to which reference has already been made.
On 29 September 2014 interim orders were made for the children to live with the wife and spend time with the husband as agreed between them. The proceedings were transferred to this Court on 13 November 2014.
On 21 May 2015 the proceedings came before Foster J for a two day hearing to determine the validity of the financial agreement and the question of interim spousal maintenance. Having directed that the parties file and serve written submissions, on 28 July 2015 his Honour published his reasons for judgment and made the orders which are the subject of the husband’s appeal.
The husband filed his Notice of Appeal on 18 August 2015 and subsequently filed an application for expedition of that appeal on 25 August 2015. Reference is made in the husband’s supporting affidavit to the prospect of an application to stay the orders made by his Honour. If that application was made I am unaware of its disposition.
Discussion
Section 94(2D)(j) of the Act provides that a Full Court of the Family Court or a judge of the appeal division, or another judge if there is no judge of the appeal division available, may make an order to expedite the hearing of an appeal. There is no provision in the Act or the rules which specifically deals with the criteria to be applied on expedition of an appeal.
Rule 12.10A of the Family Law Rules 2004 (Cth) deals with applications for an expedited trial. That rule provides that the court must consider whether a case should be given priority to the possible detriment of other cases. The potentially relevant factors referred to in the rule which the court may take into account and which are also relevant to appeals will be discussed.
Sub-paragraph (a) is concerned with whether the husband has acted reasonably and without delay in the conduct of the case. There is no doubt that in relation to the appeal and this application the husband has moved promptly and done all that is required to prosecute both his appeal and case for expedition. The application of the sub-section weighs in favour of an order for expedition.
Sub-paragraph (b) is concerned with delay. That matter has already been addressed and need not be considered further. Save to say that if an order for expedition is not made, there is a real question about whether the appeal in relation to the status of the financial agreement would be heard prior to the final property hearing. If the appeal, for example, was determined in favour of the husband but after a final hearing in relation to the property proceedings, there is obvious prejudice to both parties in the sense that they would each have incurred the expense of the allied hearing and themselves have been subjected to the personal stress inherent in that hearing. This would tend to weigh in favour of an order for expedition.
Sub-paragraph (c) concerns prejudice to the respondent. There appears to be no factor which would occasion prejudice to the wife if the appeal were to be expedited. That she agrees this is so, is reflected in the position adopted on this application which is that it is a matter for the court to determine its own priorities and whether or not the appeal should be expedited at the expense of other cases. Self-evidently the application of the sub-section is moot.
Sub-paragraph (d) requires consideration of circumstances which would justify this case being given priority to the detriment of other appeals. When I say the detriment of other cases, I mean to other appeals that have been filed earlier and would be called on for hearing in the ordinary course, but not if this case is expedited.
Relevant circumstance is defined in r 12.10A(4)(a). In this regard, the submissions on behalf of the husband focus on the considerable expense he will incur in legal fees, which he says are the surprisingly large amount of $205,000 and which would be thrown away if he is successful in the appeal. The amount is sufficiently large that one might think it would be determinative. However, I am unable to determine whether that amount is in fact reasonable or the husband has chosen to conduct the litigation in a somewhat extravagant way. If it is the latter it is a matter for him and not for the court’s concern. However, as I have already mentioned, the fact that the parties would potentially incur legal expenses of some moment in a hearing of the property proceedings but face the prospect that the appeal might achieve a measure of success as a consequence of which those costs would be, in effect, thrown away weighs in favour of the application for expedition being granted.
Finally it is necessary to consider the grounds of appeal. All that needs to be said at this point is that the husband raises a number of challenges to his Honour’s reasons and exercise of discretion. These grounds appear to raise substantial issues for consideration.
Normally I would not be inclined to grant expedition of interim orders in relation to spousal maintenance. However, as I have resolved to order expedition of the appeal in relation to the financial agreement, the issue of spouse maintenance will also be expedited.
Costs
The costs of this application should be costs in the appeal.
I certify that the preceding twenty two (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 21 October 2015.
Associate:
Date: 22 October 2015
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