SANDEX & BONDIR

[2015] FamCAFC 58

FAMILY COURT OF AUSTRALIA

SANDEX & BONDIR [2015] FamCAFC 58

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITE HEARING – Where the appellant seeks orders that the hearing of the appeal be expedited – Where the orders of the trial judge change a long-standing arrangement in relation to the parenting of the children – Where the trial judge’s orders provide for the children to primarily live with the father whereas they had previously been primarily living with the mother – Where the trial judge also refused to stay the operation of her orders – Hearing expedited.

Family Law Act 1975 (Cth)

APPLICANT: Ms Sandex

RESPONDENT: Mr Bondir

FILE NUMBER: MLC 1139 of 2008

APPEAL NUMBER: SOA 15 of 2015

DATE DELIVERED: 10 April 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Strickland J

HEARING DATE:	10 April 2015
LOWER COURT JURISDICTION:	Federal Circuit Court

LOWER COURT JUDGMENT DATE: 5 March 2015

LOWER COURT MNC: [2015] FCCA 396

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mort

SOLICITOR FOR THE APPLICANT: Carew Counsel Solicitors

THE RESPONDENT: In person

Orders

1. The hearing of the Notice of Appeal filed on 5 March 2015 be expedited such that subject to the outcome of the directions hearing before the Appeal Registrar that appeal be listed for hearing before the Full Court in the week commencing Monday 13 July 2015.

2. The appeal be referred to a directions hearing before the Appeal Registrar at 2:30pm on Tuesday 21 April 2015.

3. The question of today’s costs be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sandex & Bondir 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 MELBOURNE

Appeal Number: SOA 15 of 2015
File Number: MLC 1139 of 2008

Ms Sandex

Applicant

And

Mr Bondir

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Before me today is an application in an appeal filed by Ms Sandex (“the mother”) on 13 March 2015 seeking expedition of the hearing of the appeal in this matter.  The appeal was filed on 5 March 2015 appealing against orders made by Judge Baker on that same day, namely 5 March 2015.

2. Separate to that appeal there is an appeal numbered SOA 23 of 2015 which is an appeal filed by the mother on 1 April 2015 appealing against orders made by Judge Baker in this same matter on 6 March 2015.  The background to that Notice of Appeal being filed is that there was an application to stay the operation of the orders made by Judge Baker on 5 March 2015, and her Honour heard that application on 6 March 2015 and dismissed the application.  Thus the appeal in that matter is against that dismissal.  Although that appeal is not formally before me today I will return to it later in these reasons.

3. There is a lengthy affidavit in support of the application for expedition.  That affidavit raises concerns that the mother has in relation to the consequences of the orders made by Judge Baker on 5 March 2015. 

4. Mr Bondir (“the father”), who appears today without legal representation, has quite properly raised with me that he challenges many of the allegations made in that affidavit in support of the application for expedition, and he has indicated that he has not had the opportunity to seek legal advice about that matter.  However, as I have explained to the father and to Mr Mort, in my view, I am not able to take account of the concerns that the mother has raised, and the allegations that she has made in that affidavit.  That is because not only does the father challenge those allegations, and I am not in a position to make any findings about those matters, but many do not go to the issue of expedition.

5. In short though, it seems to me that the real issue here is that the orders made by Judge Baker on 5 March 2015 change a long-standing arrangement in relation to the parenting of the children.  Her Honour’s orders discharged all previous parenting orders and provided for the children to live primarily with the father, whereas they had previously been primarily living with the mother.  Thus, there is a significant change in the parenting arrangements brought about by her Honour’s orders.

6. The other matter which is highly relevant to the application for expedition is that Judge Baker dismissed the application for a stay, and thus her Honour’s orders of 5 March 2015 are operative.  As I have explained to the father, expedition of an appeal means nothing more than the appeal is heard earlier than otherwise might be the case, and it seems to me that in the circumstances presented, the earlier this appeal is heard the better for the children and for the parties.  As I have also explained to the father the hearing of the appeal does not mean that the appeal will be successful, and he will have the opportunity to put his position in relation to any alleged error by the trial judge.

7. It became apparent to me that what the father was concerned about was the matters raised in the affidavit in support by the mother, and his inability, given the short notice of this hearing, to address those in terms of, for example, a responding affidavit, or at least being able to seek legal advice.  However, I understand that I have assuaged the father’s concerns about that in what I have said to him today.

8. I hurriedly add though that that does not mean that those matters may not be agitated, and indeed Mr Mort has foreshadowed an application to lead further evidence, which would be updating evidence, and would indeed comprise much if not all of the matters raised in that affidavit.  As I have also explained to the father he will have the opportunity to respond to that in due course, and indeed argue before the Full Court that that further evidence should not be received.

9. For those reasons, I am satisfied that it is appropriate to expedite the hearing of this appeal.  The next Full Court sittings in Melbourne are in the week commencing 13 July 2015, and I propose to refer the matter to the Appeal Registrar to conduct a directions hearing with a view to listing this appeal at that time.

10. To return to the other appeal.

11. As I have said, it is not formally before me, but as Mr Mort has conceded, by expediting the main appeal that has taken the heat out of the appeal against her Honour’s refusal to stay the operation of her orders.  As Mr Mort appreciates, in a practical sense it would be extremely unlikely for that discrete appeal to be heard before the week of 13 July 2015, and it seems to me that the most appropriate course is for that Notice of Appeal to also be listed before the Appeal Registrar at the directions hearing in relation to the appeal that I am dealing with.  Subject to the submissions that are made to the Appeal Registrar at the directions hearing, and what the Appeal Registrar decides, it seems to me that it would be appropriate for that appeal to be listed at the same time as the main appeal is listed.

I certify that the preceding eleven (11) paragraphs are a true copy of the

ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 10 April 2015.

Associate:     

Date:              20 April 2015