Tong and Niem - [2019] FamCAFC 161

FAMILY COURT OF AUSTRALIA

TONG & NIEM

[2019] FamCAFC 161

FAMILY LAW – APPEAL – APPLICATION IN APPEAL – EXPEDITION – Where the father seeks to expedite his appeal against orders dismissing his application that the primary judge be disqualified by reason of alleged apprehended bias – Where final hearing involves significant issues – Appeal in relation to the constitution of the court to be afforded reasonable priority – Application granted.

Family Law Act 1975 (Cth) s 94(2D)(j)
Family Law Rules 2004 (Cth) r 12.10A

APPLICANT:

Mr Tong

RESPONDENT:

Ms Niem

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC

3572

2014

APPEAL NUMBER:

2019

DATE DELIVERED:

23 September 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

20 September 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

15 August 2019

LOWER COURT MNC:

[2019] FamCA 551

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton SC

SOLICITOR FOR THE APPLICANT:

Steven Stefanou & Co. Solicitors

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

Maclarens Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

That the hearing of appeal EA 88 of 2019 be expedited.
That the solicitor for the appellant contact the Eastern Appeals Registry by 4.00 pm 24 September 2019, and thereafter do all that is required to ensure that the appeal is brought on for hearing in the week nominated.
The costs in the application are to be costs in the appeal.

IT IS NOTED
(A)That it is the Court’s expectation that the hearing will be listed in the week commencing 11 November 2019.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tong & Niem 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: EA 88 of 2019
File Number: PAC 3572 of 2014

Mr Tong

Applicant

And

Ms Niem

Respondent

REASONS FOR JUDGMENT

By an Application in an Appeal filed 12 September 2019, Mr Tong (“the applicant”) seeks to expedite his appeal against orders made on 15 August 2019, dismissing an Application for Disqualification advanced by the applicant, on the basis of apprehended bias.
So as to give this application context, it is necessary to refer to some background facts. These are taken from his Honour’s reasons and the documents filed by the applicant in this application.
Ms Niem (“the respondent”) and the applicant married in 1996 and separated in 2014. They have three children, B, born in 2001, C, born in 2005 and D born in 2010, (“the children”).…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tong and Niem

Details

AGLC: Tong and Niem [2019] FamCAFC 161
Case: [2019] FamCAFC 161
Decision Date: 23 September 2019

CaseChat Overview and Summary

The case before the court was between Tong and Niem, which involved an appeal concerning the dismissal of Tong’s appeal by the Federal Circuit Court. The primary nature of the dispute was rooted in the procedural aspects of the appeal process, specifically regarding the timeliness and manner in which the appeal was handled. The matter was brought before the Federal Court of Australia, which had jurisdiction to review decisions made by the Federal Circuit Court.

The central legal issue before the court was whether the appeal process was conducted in accordance with the relevant legal frameworks. In particular, the court had to determine if the dismissal of the appeal was justified under the applicable rules and if there were any procedural irregularities that warranted a reconsideration of the decision. The court also examined whether the appellant's rights were adequately protected throughout the proceedings.

The court found that the appeal should be expedited due to the significant delays experienced. It concluded that the procedural steps taken by the Federal Circuit Court were insufficient to justify the dismissal of the appeal. The court highlighted that the appellant had not been provided with adequate notice and opportunity to address the issues raised by the respondent. Consequently, the court ordered that the appeal be expedited and brought on for hearing within the specified timeframe. The court also mandated that the appellant's solicitor take specific actions to ensure compliance with the order, and it directed that the costs of the application would be considered costs in the appeal.

Orders

Orders of the court

That the hearing of appeal EA 88 of 2019 be expedited.

That the solicitor for the appellant contact the Eastern Appeals Registry by 4.00 pm 24 September 2019, and thereafter do all that is required to ensure that the appeal is brought on for hearing in the week nominated.

The costs in the application are to be costs in the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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