Tong and Niem
[2019] FamCAFC 161
•23 September 2019
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 | of | 2014 |
| APPEAL NUMBER: | EA | 88 | of | 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: | NA |
| 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”). An Independent Children’s Lawyer (“ICL”) has been appointed to represent the best interests of the children. The ICL did not participate in the application.
The parties have been engaged in proceedings with respect to property settlement and parenting matters since August 2014. Interim orders in relation to both parenting and property matters were made by the primary judge on 19 December 2016. These orders provided that the applicant and the respondent have equal shared parental responsibility for the children. Further, that child B and child C live with the applicant and child B spend time with the respondent in accordance with his own wishes and child C spend time with the respondent as agreed between the parties, or in default of agreement, on alternating weekends in accordance with the terms of the orders. Child D was to live with the respondent and spend time with the applicant in the same mode as child C’s time with the respondent.
On 10 February 2017, the applicant advanced an application for the primary judge to be disqualified on the basis of apprehended bias. The application was dismissed in March 2017. There was no appeal from that order.
On 23, 24, 26 and 27 April 2018, the primary judge heard the final hearing in respect to parenting matters and reserved his decision.
A significant factor that has led to much complication within these proceedings is the occurrence of a house fire at the applicant’s rental home at Suburb J on 28 June 2018. The applicant was at home with child B and child C at the time of the incident. The children did not sustain any physical injuries, however the applicant suffered third degree burn injuries to approximately 48 per cent of his body. The applicant was hospitalised for some time and was finally discharged from hospital on 20 September 2018.
On 14 December 2018, his Honour discharged the interim parenting orders made on 19 December 2016. Further interim orders were made to the effect that child C reside with the respondent, and for the respondent to have sole parental responsibility for both child C and child D. It was ordered that child C spend time with the applicant in accordance with her wishes, and the applicant have supervised time with child D at a contact centre, by agreement between the parties.
The parties’ eldest child, child B, who is now 18 years old, recommenced living with the applicant 10 days after he was discharged from hospital.
On 16 May 2019, the applicant filed an Application in a Case, seeking orders that his Honour be disqualified from hearing the matter further, on the basis of apprehended bias. The applicant’s Application for Disqualification was heard on 16 July 2019, and on 15 August 2019, his Honour dismissed the application and delivered reasons for judgment. The applicant now seeks expedition of his appeal against the orders made on 15 August 2019.
The expedition application
Section 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) provides that a judge of the Full Court of the Family Court or a judge of the Appeal Division, or another judge if no judge of the Appeal Division is available, may make an order that an appeal be expedited to hearing. The Act does not go further in outlining any specific criteria to be applied when determining expedition of an appeal.
Rule 12.10A of the Family Law Rules 2004 (“the Rules”) however provides useful guidance as to the approach that ought to be adopted when determining the question of expedition of an appeal. As such, the Court is required to consider whether the applicant has acted reasonably and without delay in the conduct of the case, whether the application for expedition has been made without delay and any prejudice that may arise for the respondent. Importantly, pursuant to r 12.10A(2)(d), the Court must also consider whether the case should be afforded priority to the possible detriment of other cases. The point being that it is to be remembered that other appeals have been filed prior to this one, and if this appeal is to be expedited, that may result in another case being deprived of the opportunity for hearing in what would otherwise be in order of priority.
Rule 12.10A(2)(a) concerns whether the applicant has acted reasonably and without delay. I accept that the appeal was lodged by the applicant in a timely manner as was this application. The applicant is no stranger to litigation, having been involved in proceedings in this court since August 2014, and is therefore familiar with the expectations of the Court in relation to his ability act reasonably and punctually. There is no reason to doubt that the applicant will do all that is necessary to ensure an urgent hearing of his appeal. This consideration weighs in favour of expedition.
Rule 12.10A(2)(b) concerns whether the application for expedition has been made without delay. As I have already mentioned, the applicant filed his application, along with supporting material, in a timely manner. This consideration also weighs in favour of the applicant.
Rule 12.10A(2)(c) concerns any prejudice that might result for the respondent. The respondent supports expedition of the appeal and therefore, this consideration also weighs in favour of the application.
Finally, r 12.10A(2)(d) concerns the question of whether there is any relevant circumstance which warrants the case being afforded priority, to the possible detriment of other cases. Examples of what may constitute a ‘relevant circumstance’ are set out in r 12.10A(4)(a) – (g). Nothing substantial was said about these matters and it is inferred they are either irrelevant or moot.
However, the parties have substantial issues which are yet to be listed for trial. Where there is a serious challenge to the constitution of the Court, it is desirable that that issue is dealt with as quickly as the appeal court can reasonably accommodate.
I am equally satisfied that the grounds of appeal raised by the applicant in his Notice of Appeal are not so lacking in merit that an otherwise strong application for expedition would be denied on this basis.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Ryan J delivered on 23 September 2019.
Associate:
Date: 23 September 2019
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