Swain and Searle
[2017] FamCAFC 146
•26 July 2017
FAMILY COURT OF AUSTRALIA
| SWAIN & SEARLE | [2017] FamCAFC 146 |
| FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Application in an Appeal for expedition of two appeals – Where the mother seeks to expedite both the substantive appeal against final parenting orders and orders dismissing her stay application – Where in the ordinary course the appeals would be heard in three months’ time – Applications withdrawn |
| APPLICANT: | Ms Swain |
| RESPONDENT: | Mr Searle |
| FILE NUMBER: | NCC | 155 | of | 2015 |
| APPEAL NUMBER: | EA EA | 76 84 | of of | 2017 2017 |
| DATE DELIVERED: | 26 July 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 26 July 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 July 2017 |
| LOWER COURT MNC: | [2017] FCCA 1699 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Levick |
| SOLICITOR FOR THE APPLICANT: | Powe & White Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Brady |
| SOLICITOR FOR THE RESPONDENT: | Hannaway Lawyers |
Orders
That appeals EA 76 of 2017 and EA 84 of 2017 be consolidated.
That the procedural hearing listed before Registrar McNamara on 2 August 2017 in appeal EA 76 of 2017 also make directions for appeal EA 84 of 2017.
Costs of the applications to be costs in the appeals.
Notation
The appeals will be listed before the Full Court in the October 2017 sittings.
On the basis of the above notations the applications are withdrawn.
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 Swain & Searle 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 DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 76 of 2017 & EA 84 of 2017
File Number: NCC 155 of 2015
| Ms Swain |
Applicant
And
| Mr Seale |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Before the court today are two applications seeking expedited hearings of appeals EA 76 of 2017 (filed 12 July 2017) and EA 84 of 2017 (filed 24 July 2017). Both applications were filed by Ms Swain (“the mother”).
The appeals relate to final parenting orders made by Judge Myers on 4 July 2017, with settled reasons published on 20 July 2017. The effect of his Honour’s orders was to increase the amount of time the parties’ daughter would spend with the father and for the parties to have equal shared parental responsibility for the child. The child was born in 2013. She is just over three and a half years of age.
On 21 July 2017 Judge Myers heard an Application in a Case filed by the mother on 14 July 2017 seeking a stay of the orders, pending the appeal. The application was refused, and EA 84 of 2017 appeals that refusal. His Honour’s reasons were delivered orally and in the short period between pronouncement of the orders and today’s hearing he has not been in a position to publish settled reasons. As it transpires, nothing turns on the absence of settled reasons.
Mr Seale (“the father”) is the child’s father and the respondent to these applications. It is his position that the applications should be dismissed.
Before the hearing commenced today enquiries were made by my chambers of the Appeal Registrar as to when these appeals might be listed in the ordinary course that is, without an order for expedition giving the appeals priority over other appeals. I am advised that the appeals, if listed in the ordinary course, would be listed for hearing in the October 2017 sittings.
When that information was conveyed to counsel appearing for the mother and for the father, both indicated that they were content with that course acknowledging the obvious reality that the parties would need some time to prepare their cases.
The applications for expedition are accordingly not pressed and there are no submissions from the respondent that would mean the court would not bring the appeals on in the ordinary course.
The appeal against the substantive order is listed for a procedural hearing before an Appeal Registrar on 2 August 2017. That appeal will be consolidated with the appeal against the refusal to give a stay and the parties should proceed on the basis that the procedural hearing on 2 August 2017 will deal with both appeals.
The orders made today will note that the appeals are to be listed in the October 2017 sittings.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 26 July 2017.
Associate:
Date: 27 July 2017
0
0
0