Sacone and Dadson
[2013] FamCAFC 117
•26 June 2013
FAMILY COURT OF AUSTRALIA
| SACONE & DADSON | [2013] FamCAFC 117 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Application filed by the appellant husband for expedition of an appeal against interim spousal maintenance order–Where there has been no application for a Stay of the order under appeal – Where the nature of the order under appeal will not affect the disposition of the final hearing – HELD –Application dismissed. |
| Family Law Act 1975 (Cth): s 94 |
| APPLICANT: | Mr Sacone |
| RESPONDENT: | Ms Dadson |
| FILE NUMBER: | WOC | 325 | of | 2012 |
| APPEAL NUMBER: | EA | 55 | of | 2013 |
| DATE DELIVERED: | 26 June 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 26 June 2013 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Hilton King Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Johnson Horsley Lawyers |
Orders
That the application for expedition of the Amended Notice of Appeal filed 16 May 2013 is dismissed.
That the documents to be relied on at the appeal shall comprise the following documents arranged in the following order:
1.Amended Notice of Appeal filed 16 May 2013;
2. Order of Judge Foster dated 26 April 2013;
3. Reasons for Judgment of Judge Foster dated 26 April 2013;
4. Wife Application in a Case filed 1 March 2013;
5. Husband’s Response to an Application in a Case filed 4 April 2013;
6.Wife’s affidavit sworn 28 February 2013, filed 1 March 2013 (paragraphs 1 to 16);
7.Wife’s affidavit sworn and filed 4 April 2013 (paragraphs 3 to 4 and paragraphs 9 to 31);
8.Wife’s Financial Statement sworn 10 December 2012, filed 20 December 2012;
9. Wife’s Financial Statement sworn and filed 4 April 2013;
10.Husband’s affidavit sworn 24 March 2013, filed 25 March 2013 (paragraphs 10, 11, 12, 23, 30, 31, 34, 35, 36, 37, 45, 46, 47, 71, 72, 74, 75, 77, 81-89, 90 - 102);
11.Husband’s updated Financial Statement sworn 24 March 2013, filed 25 March 2013;
12.Wife’s Case Outline from heading “Section 75(2) matters” filed 5 April 2013;
13.Husband’s Case Outline from heading “Spousal Maintenance” filed 5 April 2013;
14. Transcript of Proceedings before Judge Foster on 5 April 2013.
That on or before 31 July 2013 the appellant obtain those parts of the transcript of evidence of the hearing before Judge Foster which may be relevant to the appeal and provide copies of such transcript to the Court and to the respondent.
That the appellant file and serve a written summary of argument and list of authorities (if any) on or before 31 July 2013.
That the respondent file and serve a list of any further documents that were before Judge Foster, not included in the appellant's list, upon which she seeks to rely, together with a written summary of argument and a list of authorities (if any) on or before 16 August 2013
That each party be at liberty to apply for any further directions to the Honourable Justice Ryan (or if not reasonably available to another member of the Appeal Division) upon seven (7) days notice in writing to the other party and to the Appeals Registrar in the Sydney Registry.
That the appeal be listed for a half day hearing before the Honourable Justice Ryan (or if not reasonably available then such other judge as may be nominated by the Honourable Justice Finn) on 28 October 2013 at 10.00 am.
That the costs of today’s proceedings be reserved.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sacone & Dadson 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 55 of 2013
File Number: WOC 325 of 2012
| Mr Sacone |
Applicant
And
| Ms Dadson |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally.
This is an Application in an Appeal by Mr Sacone (“the appellant”), filed 3 June 2013, in which he seeks expedition of the hearing of his Amended Notice of Appeal, filed 16 May 2013. The order under appeal was made by Judge Foster, on 5 April 2013, whereby interim spousal maintenance, payable by the appellant, in the amount of $350 per week for
Ms Dadson (“the respondent”) was ordered. That order was made in the context of proceedings for property settlement and spousal maintenance.
The Amended Notice of Appeal asserts that his Honour failed to take into account the appellant husband’s financial obligations to support two children from a prior relationship who reside with him six nights each fortnight and that, in quantifying the appellant’s capacity to pay interim spousal maintenance, the amount allocated for the appellant’s own needs was grossly inadequate.
As is correctly said by the solicitor appearing for the appellant husband on this application, the issues for consideration on the appeal are narrow. When the Notice of Appeal was filed, it was not accompanied by an application for leave to appeal. That omission has been rectified and the Amended Notice of Appeal incorporates the application for leave to appeal. In exchanges, I enquired whether there had been an application for a stay of Judge Foster’s order. I am informed there was not. In circumstances where the order sought on the appeal, if the appellant is successful, is that he pays, not $350 per week interim spousal maintenance, but $200 per week, by way of interim spousal maintenance, the failure to apply for a stay of the order under appeal assumes some significance.
It is also significant that the final hearing of the property settlement and spousal maintenance proceedings is likely to take place in September or October 2013. In part, the application for expedition is pressed on the basis that, unless expedited, the final hearing will take place before the appeal concerning the interim order can be heard. In the ordinary course, an appeal against an interim order would be dealt with before the final hearing and thus there is potentially some force in the argument in favour of expedition. However, because of the nature of the order under appeal, which will not affect disposition of the final hearing, that the final hearing looms, does not weigh in favour of expedition.
Section 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) provides that the 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 Family Law Rules 2004 specifically dealing with the criteria to be applied on the hearing of an application for expedition of an appeal. Rule 12.10A deals with expedition on the first day of a hearing before a trial judge. It provides some guidance as to the type of considerations which this Court would consider on an application to expedite the appeal. The factors which are relevant here are these:
(a) Whether the appellant has acted reasonably and without delay in the conduct of the case.
Certainly, the appellant has filed his notice of appeal within time.
(b) Whether the application has been made without delay.
The application for expedition has been made without delay.
(c) Any prejudice to the respondent.
No submissions were made on this point by the respondent and it is accepted that as far as the respondent is concerned whether the application is granted or refused is a matter of no moment.
(d) Whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.
This is where the failure of the appellant to apply for a stay becomes significant. The appellant had an avenue which may have provided the remedy he seeks. For reasons which are not entirely clear, he has chosen this route rather than the well-trodden path of seeking a stay of the orders made by Judge Foster, albeit, perhaps, on terms consistent with the orders he would seek if he secures a measure of success on the appeal.
I am not satisfied that, in circumstances where the appellant has failed to apply for a stay of Judge Foster’s orders and the final hearing is anticipated to commence in September or October 2013, that this appeal should be expedited.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 26 June 2013.
Associate:
Date: 14 August 2013
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