Gattenby and Chisler
[2018] FamCAFC 46
•9 March 2018
FAMILY COURT OF AUSTRALIA
| GATTENBY & CHISLER | [2018] FamCAFC 46 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITE HEARING – Where the primary judge made orders providing for a new arrangement to commence from the start of the 2018 school year which was a significant change to the pre-existing arrangement – Where the applicant’s case is that the new arrangement would be deleterious for the children – Where the primary judge stayed the relevant orders – Where the primary judge was concerned that an application for expedition of the hearing of the appeal be filed – Where the applicant withdrew her application on the basis of the appeal being listed earlier than the week advised by the Appeals Registrar and her senior counsel not being available in that week – Where the respondent’s counsel made an oral application for the appeal to be listed at the earliest opportunity – Where the issue to be determined should be heard and decided as soon as possible – Appeal expedited. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Gatenby |
| RESPONDENT: | Ms Chisler |
| FILE NUMBER: | MLC | 3057 | of | 2016 |
| APPEAL NUMBER: | SOA | 94 | of | 2017 |
| DATE DELIVERED: | 9 March 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 9 March 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 November 2017 |
| LOWER COURT MNC: | [2017] FamCA 1109 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Johnston |
| SOLICITOR FOR THE APPLICANT: | Marshalls & Dent & Wilmoth |
| COUNSEL FOR THE RESPONDENT: | Mr Mellas |
| SOLICITOR FOR THE RESPONDENT: | Leanne Cain & Associates |
Orders
The Application in an Appeal filed by the applicant on 10 January 2018 be dismissed.
On the oral application of the respondent, the hearing of appeal no. SOA 94 of 2017 be expedited and listed in the Full Court sitting commencing on Monday, 30 April 2018.
The appeal be referred to the Appeals Registrar to conduct a directions hearing to prepare the appeal for hearing.
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 Gatenby & Chisler 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).
|
Appeal Number: SOA 94 of 2017
File Number: MLC 3057 of 2016
| Ms Gatenby |
Applicant
And
| Ms Chisler |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
The application before the Court today is an application in an appeal filed by Ms Gatenby (“the applicant”) on 10 January 2018, seeking an order that the hearing of the appeal filed in this matter be expedited. The Notice of Appeal was filed on 15 December 2017, and that is an appeal against parenting orders made by Bennett J on 17 November 2017.
The primary basis for the application is apparent from the affidavit filed in support of the application on 10 January 2018, and particularly paragraphs 25, 26 and 27 of that affidavit. The basis for the application is that the new arrangement her Honour put in place, and which was to commence from the start of the 2018 school year, was a significant change to the pre-existing arrangement, and in the event that an appeal could not be heard expeditiously, when that new arrangement came into effect, it was the applicant’s case that there would be a deleterious effect upon the children.
Of course it must be understood that that was the applicant’s case. It plainly is not Ms Chisler’s (“the respondent’s”) case, but that is a matter which will feed into the hearing of the appeal when it takes place.
In any event, what happened was, on 10 January 2018 the applicant sought a stay from her Honour of the relevant orders. On 11 January 2018, her Honour granted the stay.
I am told by counsel for the applicant that, although her Honour’s ex tempore reasons for judgment delivered that day granting the stay have not yet been published, her Honour was concerned that there be an application for expedition of the hearing of the appeal filed. It is not put as highly as that was a condition of the stay being granted and, indeed, there is nothing in her Honour’s orders made on 11 January 2018 to that effect. As counsel properly put to me though, that was a matter raised by her Honour, and which clearly bore upon her Honour granting the stay as one of, I assume, a number of matters.
In any event, that application for expedition has been listed today.
The position of the Court in relation to the listing of this appeal, and as I have explained to counsel, is that there is availability for it to be listed in the week commencing 30 April 2018. The applicant’s counsel tells me that in advice received from the Appeals Registrar, it was indicated that the likely hearing date of the appeal would be in the list commencing on 18 June 2018. It is usual practice for the Appeals Registrar to give some indication to an appellant as to when an appeal might be heard in the normal course of events, but that is subject to whether the appeal is expedited, or whether, indeed, there is an earlier hearing date available, and as I say, in this instance, there is.
The applicant’s counsel tells me that her client has briefed senior counsel and he apparently is not available in the week of 30 April 2018, but he is available in the week of 18 June 2018. I understand that senior counsel is not counsel who appeared for the applicant at trial, but has been involved in the matter, and specifically in terms of settling an Amended Notice of Appeal which I have sighted today, but which may need further amendment and, thus, has not yet been filed.
Given those circumstances, namely senior counsel’s unavailability in the week of 30 April, and that being the list in which this appeal can be heard, counsel for the applicant, on instructions, has withdrawn the application for expedition on the basis that the appeal will be listed in the normal course of events, and presumably, although there is never any guarantee about this, in the week commencing 18 June 2018.
Given the withdrawal of that application, I indicated that I would be dismissing it.
Upon hearing that, the respondent’s counsel made an oral application for the appeal to be expedited, and to have the matter listed at the earliest available opportunity, and to repeat, that is in the week commencing 30 April 2018.
Given this turn of events, there was obviously no written application that the respondent had filed, nor any affidavit in support of the application, but the respondent’s counsel has referred me to the respondent’s affidavit filed in relation to the application made by the applicant for the stay that I have earlier mentioned and, indeed, I am told that that stay application was opposed. The reasons for that stay being granted are relied upon by the respondent in now seeking expedition of the hearing of the appeal.
In summary then, this is a situation where the trial judge made a decision as to what was in the best interests of the children, and that decision was that there should be a new arrangement put in place as from the commencement of the school year in 2018. Plainly, if the matter is listed in April 2018, then the issue of whether her Honour has erred in making those orders or not, will be heard and determined earlier than if the matter is listed in June 2018. Given that circumstance, I propose to grant the application and list the appeal in the week commencing 30 April 2018.
I certify that the preceding thirteen (13) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 9 March 2018.
Associate:
Date: 21 March 2018
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