SELBY & ROBILLIARD
[2018] FamCAFC 159
•13 August 2018
FAMILY COURT OF AUSTRALIA
| SELBY & ROBILLIARD | [2018] FamCAFC 159 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Applications in the alternative for adjournment of appeal and extension of time to file documents – Where procedural orders were made by the Appeals Registrar listing the appeal and fixing a timetable – Where the applicant provides explanation for the need for an adjournment or extension of time – Where there is no undue prejudice – Adjournment granted and fresh procedural orders made. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Selby |
| RESPONDENT: | Ms Robilliard |
| FILE NUMBER: | MLC | 7778 | of | 2015 |
| APPEAL NUMBER: | SOA | 30 | of | 2018 |
| DATE DELIVERED: | 13 August 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 13 August 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 April 2018 |
| LOWER COURT MNC: | [2018] FamCA 214 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Matta |
| SOLICITOR FOR THE APPELLANT: | Mills Oakley |
| COUNSEL FOR THE RESPONDENT: | Mr Marchetti |
| SOLICITOR FOR THE RESPONDENT: | RNG Lawyers |
Orders
The hearing of the appeal fixed for 31 August 2018 is vacated.
The time for compliance with Order 3 made on 17 July 2018 is extended to 17 August 2018.
The time for compliance with Order 4(a) made on 17 July 2018 is extended to 31 August 2018.
The time for compliance with Order 4(b) made on 17 July 2018 is extended to 28 September 2018.
Save as to costs, the Amended Application in an Appeal filed on 10 August 2018 is dismissed.
IT IS FURTHER ORDERED:
The oral applications made by each party for costs against the other is dismissed.
IT IS NOTED:
A. Subject to compliance with these orders, the parties expect the appeal will be listed for hearing before the Full Court in Melbourne in the November 2018 sittings.
B. The parties do not require the publication of reasons for the dismissal of Order 6 hereof.
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 Selby & Robilliard 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 SYDNEY |
Appeal Number: SOA 30 of 2018
File Number: MLC 7778 of 2015
| Mr Selby |
Applicant
And
| Ms Robilliard |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
The appeal in these proceedings is currently listed for hearing on Friday 31 August 2018. Presently pending before the Court is the applicant husband’s application to adjourn the hearing of the appeal.
The appeal is against orders made by Cronin J on 9 April 2018 dividing the parties’ property interests under Part VIII of the Family Law Act 1975 (Cth) (“the Act”). The appeal was filed within time on 7 May 2018. The appeal proceedings were listed for procedural hearing before the Southern Region Appeals Registrar with unexpected haste on 17 July 2018. At that court event, the appeal was fixed for 31 August 2018 and procedural orders were programmed for the filing of appeal books, transcript and summaries of argument sufficiently in advance.
The husband filed an Application in an Appeal on 3 August 2018 seeking to adjourn the appeal and, in the alternative, to push back the dates by which the appeal books, transcript and summaries of argument needed to be filed. The Application in an Appeal was listed as quickly as could be conveniently arranged, which is before me in Sydney by a video-link with the Melbourne Registry today (Monday 13 August 2018). In the meantime, the husband filed an Amended Application in an Appeal (last Friday 10 August 2018) upon which he now moves and he relies upon the affidavit of Mr P, solicitor, filed on 3 August 2018 in support of it.
The wife opposed the application in all respects. She contended, in essence, the husband has had sufficient time within which to be ready for the appeal on 31 August 2018, given that:
(a)the appeal was filed three months ago on 7 May 2018; and
(b)the husband knew from 17 July 2018 that the appeal was fixed for 31 August 2018, but delayed some three weeks until 3 August 2018 to file the Application in an Appeal.
The husband conceded the appeal books were now ready in draft format and could be filed today, and furthermore, the electronic transcript could be filed by tomorrow, but that still does not cure the problem about the dates by which the summaries of argument should be filed.
The husband applied in the alternative to file his summary of argument by Friday 17 August 2018, but in oral argument today submitted for that date to be pushed back to Monday 20 August 2018. He contended he could meet that deadline but, given the transcript will not be available until tomorrow, it would cut short the time in which his summary of argument can be prepared thoroughly.
The wife contended that if the husband was allowed up to a week to file his summary of argument then she should be allowed until 30 August 2018 (which is the day before the appeal) to file her summary of argument. That would be unsatisfactory for both the husband and the Full Court. The husband needs time to understand the wife’s argument in rebuttal and allowing him only one night to do so before the appeal is not enough. Furthermore, the parties are entitled to expect a fully informed Full Court bench will hear and dispose of the appeal. It would be difficult for the Full Court to be well prepared and thoroughly informed of the parties’ dispute if the respondent wife’s arguments are not revealed until the day before the appeal.
The wife would not consent to any order which would require her to file her summary of argument any earlier, from which I impute she genuinely believes she needs the extra time within which to meet the husband’s arguments. That is understandable, but she must then also understand the husband genuinely believes he needs more than four to six days to formulate the submissions he perceives are necessary to properly prosecute the appeal. Neither party should feel as though the appeal is unduly rushed, though, presumably, they would both like it heard and determined reasonably promptly. Adjournment of the appeal will probably see it heard in the November sittings in lieu of the August sittings – a delay of about three months, but still within six months of the appeal being filed.
The only prejudice apparently suffered by the wife through an adjournment is the further three months which will elapse with the parties’ underlying dispute unresolved, but both parties assert their prejudice through not being able to properly conduct the appeal if they are forced to adhere to a modified time table over the next fortnight. It is a shame for the appeal date to be lost, but the balance of convenience sits with an adjournment being granted.
I will make procedural orders extending the time for compliance with the orders made by the Appeals Registrar on 17 July 2018.
For those reasons, I make the following orders.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 13 August 2018.
Legal Associate:
Date: 3 September 2018
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