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Grounds for expediting an Appeal

The Full Court of the Family Court of Australia recently heard an application to expedite an appeal in the matter of Nimmo & Bush [2016] FamCAFC 274.

In November 2016, the father of a 4 year old child filed a Notice of Appeal against Orders made by Judge Street. The father’s 24 grounds of appeal include allegations of procedural unfairness and apprehended bias on the part of the trial judge. In December 2016, the father filed an application to expedite the appeal.

The Full Court found that neither the Family Law Act 1975 (Cth) nor the Family Law Rules 2004 (Cth) contain specific provisions with respect to the expedition of appeal hearings. Instead, Justice Murphy directed himself to Rule 12.10A of the Family Law Rules which refers to the expedition of trials.

Justice Murphy noted that in relation to the expedition of a trial, the Court may take into account the following:

  1. Whether the application has acted reasonably and without delay in the conduct of the case;
  2. Whether the application has been made without delay;
  3. Any prejudice the expedition might bring to the respondent; and
  4. Whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.

Relevant circumstances include:

  1. Whether the age, health or other circumstances (such as an imminent move interstate or overseas) affecting a party or witness would affect the availability or competence of the party or witness;
  2. Whether a party has been violent, harassing or intimidating to another party, witness or child which is the subject of the case;
  3. Whether the applicant is suffering financial hardship that:
    1. Is not caused by the applicant; and
    2. Cannot be rectified by an interim order;
  4. Whether the continuation of interim orders is causing the applicant or a child hardship;
  5. Whether the purpose of the case will be lost if it is not heard quickly;
  6. Whether the case involves allegations of child abuse; and
  7. Whether an expedited trial would avoid serous emotional or psychological trauma to a party or child who is the subject of, or affected by, the case.

Justice Murphy allowed the application to expedite the appeal citing the mother’s mental health issues as a significant factor in his determination. Justice Murphy ordered the parties to attend upon the Appeals Registrar for an Appeal Directions Hearing immediately following him granting the application.

 

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