Probert and Probert & Anor
[2018] FamCAFC 134
•20 July 2018
FAMILY COURT OF AUSTRALIA
| PROBERT & PROBERT AND ANOR | [2018] FamCAFC 134 |
| FAMILY LAW – APPEAL – Application for expedition – Where the cross-appellants seek to expedite the appeal and cross-appeal against property orders – Insufficient reasons to permit expedition – Application dismissed. |
| Family Law Act 1975 (Cth) |
APPELLANT/ FIRST CROSS-RESPONDENT: | Mr Probert |
| FIRST RESPONDENT/ SECOND CROSS-RESPONDENT: | Ms Probert |
| SECOND RESPONDENTS/ CROSS-APPELLANTS | Ms Whittemore & Mr Whittemore |
| FILE NUMBER: | PTW | 872 | of | 2014 |
| APPEAL NUMBER: | WA | 17 | of | 2018 |
| DATE DELIVERED: | 20 July 2018 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | 20 July 2018 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 29 March 2018 |
| LOWER COURT MNC: | [2018] FCWA 54 |
REPRESENTATION
| THE APPELLANT/ FIRST CROSS-RESPONDENT: | In person |
| COUNSEL FOR THE FIRST RESPONDENT/ SECOND CROSS-RESPONDENT | Ms King |
| SOLICITOR FOR THE FIRST RESPONDENT/SECOND CROSS- RESPONDENT: | Genuine Legal |
| THE SECOND RESPONDENTS/ CROSS-APPELLANTS: | In person |
Orders
The Application in an Appeal filed 25 June 2018 be dismissed.
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 Probert & Probert & Whittemore 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).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 17 of 2018
File Number: PTW 872 of 2014
| Mr Probert |
Appellant/First Cross-Respondent
And
| Ms Probert |
First Respondent/Second Cross-Respondent:
And
| Ms Whittemore & Mr Whittemore |
Second Respondents/Cross-Appellants
EX TEMPORE REASONS FOR JUDGMENT
The application before the Court today is brought by Mr and Mrs Whittemore (the cross-appellants) for the expedition of the appeal and cross-appeal. The appeal, filed by Mr Probert, and the cross-appeal are in relation to property orders made in the Magistrates Court of Western Australia. Since the filing of the application, the Appeals Registrar has conducted the directions hearing in relation to the appeal and cross-appeal and has made the standard directions to prepare the matter for hearing in the September sittings of the Full Court in Perth.
Mr and Mrs Whittemore would like the matter to be expedited because the case has been dragging on for many years. The litigation is debilitating for them and they are also concerned for Mr Probert, who is currently homeless. In the interests of the whole family, they want the matter to be dealt with quickly.
As a secondary issue, Mr and Mrs Whittemore have to book their holidays in advance and they had hoped to be away at the time that the matter is tentatively set down for hearing by the Full Court. As I have explained to them, I fully understand and appreciate their arguments but they are not sufficient to permit the expedition of the appeal and cross-appeal. If the expedition application was permitted, the Court would have to enlist at least two judges from the Eastern States, and those judges would then have to find time in what is a very busy schedule of the Full Court to hear the matter.
The other difficulty is that, although I appreciate the arguments they have put forward are genuine, they are not sufficient to make this case more urgent than many of the other cases that are waiting to be heard. I am therefore going to dismiss their application for expedition. In doing so, I put on record that I have explained that the matter will only be heard in September if it is ready for hearing and it is therefore important that all parties comply with the Appeal Registrar’s directions. If the matter is not ready, one possibility is that the appeal and/or the cross-appeal will be dismissed.
I will also note that the Appeals Registrar is requested to do whatever is practicable to ensure that this matter is given priority in the September sittings.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 20 July 2018.
Associate:
Date: 14 September 2018
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