NADALES & NADALES
[2018] FamCAFC 187
•20 September 2018
FAMILY COURT OF AUSTRALIA
| NADALES & NADALES | [2018] FamCAFC 187 |
| FAMILY LAW – APPEAL – PROCEDURAL – Where there was no appearance by or on behalf of the respondent – Where that non-appearance prevented issues being raised which may have resulted in the appeal not needing to be listed for hearing – Appeal listed for hearing and directions made to prepare it for that hearing. |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Mr Nadales |
| RESPONDENT: | Ms Nadales |
| FILE NUMBER: | MLC | 10434 | of | 2017 |
| APPEAL NUMBER: | SOA | 29 | of | 2018 |
| DATE DELIVERED: | 20 September 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 20 September 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 April 2018 |
| LOWER COURT MNC: | [2018] FCCA 1091 |
REPRESENTATION
| THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Robinson Gill |
Orders
The documents to be before the Court for the purposes of the appeal are the documents set out in the draft appeal index filed on 31 May 2018 save and except the documents identified as exhibits.
On or before the close of business on 26 October 2018 the appellant obtain the transcript of the hearing before the trial judge and provide copies of that transcript electronically to the Court and to the respondent’s solicitors.
On or before the close of business on Friday 26 October 2018 the appellant file and serve a summary of argument and list of authorities, if any.
On or before the close of business on Friday 26 October 2018 the appellant file and serve any application to lead further evidence and any material in support thereof.
On or before the close of business on Wednesday 14 November 2018 the respondent file and serve a summary of argument and list of authorities, if any, together with any response to any application to lead further evidence filed by the appellant.
The appeal be listed for hearing before the Honourable Justice Strickland in Melbourne commencing at 10:00am on Tuesday 20 November 2018 with a time estimate of half a day.
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 Nadales & Nadales 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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 29 of 2018
File Number: MLC 10434 of 2017
| Mr Nadales |
Appellant
And
| Ms Nadales |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is a directions hearing in relation to a Notice of Appeal filed on 1 May 2018 by Mr Nadales (“the husband”) against orders made by Judge Wilson on 5 April 2018.
The husband appears in person, however there is no appearance by or on behalf of Ms Nadales (“the wife”).
I note that yesterday the solicitor for the wife contacted the Appeal Registrar effectively enquiring whether they needed to attend the hearing today. The Appeal Registrar responded, appropriately in my view, saying that that was a matter for the solicitor. In light of their non-attendance today, obviously a decision not to attend was made, but that is unfortunate.
This is an appeal against an order of Judge Wilson made on 5 April 2018. However, the reasons for judgment in support of the order made by his Honour comprises two paragraphs. Immediately that raises the question of the adequacy of those reasons, and frankly, what I had proposed to do today was enquire of the wife’s solicitors as to the basis on which they would say those two paragraphs provided by the trial judge were sufficient. Unfortunately, in their absence, it is not possible for me to raise that matter with them, and in the circumstances all I can do is list the appeal for hearing, and raise that matter at the hearing; a hearing which may have been unnecessary.
It may be that the answer to that question will be provided in the summary of argument filed on behalf of the wife.
I have raised with the husband the content of his draft appeal index. It seems that there is a doubling up of the documents identified, for example, there are a number of affidavits listed, but there are also exhibits which comprise those affidavits. Clearly the exhibits do not need to be before the Court if the affidavits are before it.
There were some other matters that I raised with the husband, but I will not spend any more time on them, and I will address those issues in the orders I propose to make.
I certify that the preceding seven (7) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 20 September 2018.
Associate:
Date: 20 September 2018
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