Kidd and Kidd (No.2)
[2013] FCCA 1101
•2 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KIDD & KIDD (No.2) | [2013] FCCA 1101 |
| Catchwords: FAMILY LAW – Application for stay pending Appeal – application for leave to file a Notice of Appeal – application for disqualification – where time to appeal has expired. |
| Legislation: Family Rules 2004, r.22.11 |
| Cases cited: Johnson v Johnson (2000) 201 CLR 488 Kidd & Kidd [2013] FCCA 684 |
| Applicant: | MS KIDD |
| Respondent: | MR KIDD |
| File Number: | SYC 5925 of 2012 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 2 August 2013 |
| Date of Last Submission: | 2 August 2013 |
| Delivered at: | Sydney |
| Delivered on: | 2 August 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Lloyd SC |
| Solicitors for the Applicant: | Reid Family Lawyers |
| Counsel for the Respondent: | Mr Wahab |
| Solicitors for the Respondent: | York Family Law |
ORDERS
The Application in a Case filed on 1 August 2013 is dismissed.
The Applicant is granted leave to make an oral Application.
The time for compliance with Order (1) made on 28 June 2013 is extended for a period of fourteen (14) days from the date of this Order.
The time for the Applicant to file and serve a written submission in respect of costs as set out in Order (3) made on 28 June 2013 is extended for a period of twenty one (21) days from the date of this Order.
IT IS NOTED that publication of this judgment under the pseudonym Kidd & Kidd is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 5925 of 2012
| MS KIDD |
Applicant
And
| MR KIDD |
Respondent
REASONS FOR JUDGMENT
In my view, looking at the application it is misconceived.
Order 1 seeks an application for leave to file a Notice of Appeal out of time. This Court does not have the jurisdiction to do that. It is the Full Court of the Family Court to whom appeals are directed that has the jurisdiction.
Order 2 seeks a stay of the Orders made by the Court on 28th June pending the outcome of the appeal. There is no appeal. It is not sufficient, in my view, to say that an application for leave to appeal out of time will be filed today.
An application seeking a stay, pending the outcome of an appeal, would appear to me to be doomed to failure unless there is an appeal during which the orders can be stayed (see Family Law Rules 2004 r.22.11 (2)) And one of the reasons why there should be an appeal is that the authorities, in respect of stays, require the Court to consider the grounds of appeal which are to be argued so as to form some view as to whether the proposed appellant has an arguable case.
In my view, with respect, it is not sufficient to say that the grounds of appeal will be obvious. Grounds of appeal are only obvious to a court when they appear on a notice of appeal. That, then, leaves an application that I should recuse myself from hearing all matters in these proceedings.
In my view, that application is misconceived. It would be inappropriate, for instance, if there is to be an appeal against my decision for me not to hear the application for a stay, because it is well known in the law that the first judicial officer to whom one looks for a stay is the judicial officer who made the order that is sought to be stayed. Whether or not it is appropriate for me to make an order recusing myself from the final hearing of the property application is, to my mind, an issue that can be dealt with on another day.
If such an application is brought to me at the appropriate time I will, of course, be considering whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the question that I am required to decide, which I think is what the High Court of Australia said in Johnson v Johnson[1], an appeal from the Full Court of the Family Court. However, this Application, in my view, in its present form is (a) misconceived, and (b) premature.
[1] (2000) 201 CLR 488
Accordingly, I propose to dismiss the Application. I will be more than willing to hear any such application that is made once the various defects that I have identified have been rectified. At this stage, however, the application is dismissed.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 15 August 2013