Balfour & Ferber - [2024] FedCFamC1A 179

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Balfour & Ferber [2024] FedCFamC1A 179

Appeal from: Balfour & Ferber (No 2) [2024] FedCFamC2F 1162

Appeal number: NAA 225 of 2024

File number: MLC 6089 of 2021

Judgment of: TREE J

Date of judgment: 11 October 2024

Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Where the father seeks relief from the obligation to obtain the transcript of the primary proceedings – Where the father is currently incarcerated – Where with one exception the transcript would not inform the father’s grounds of appeal – Where the father should not be deprived of the opportunity to prosecute his appeal because he cannot obtain the transcript – Where the application is not opposed – Application granted.

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.19, 13.22

Number of paragraphs: 16

Date of hearing: 10 October 2024

Place: Cairns (via video link)

The Appellant: Litigant in Person

The Respondent: Litigant in Person
ORDERS

NAA 225 of 2024
MLC 6089 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR BALFOUR

Appellant

AND:
MS FERBER

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

10 OCTOBER 2024

ON 10 OCTOBER 2024 THE COURT ORDERED BY CONSENT THAT:
1.The requirement for the appellant to obtain transcript of the proceedings of 16 August 2024 is dispensed with, such that Orders 2 and 3 of the orders made 30 September 2024 are discharged.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Balfour & Ferber has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:

On 26 August 2024 a judge of the Federal Circuit and Family Court of Australia (Division 2) dismissed a Contravention Application filed on 3 May 2024 by Mr Balfour (“the father”). That application contended that Ms Ferber (“the mother”) had breached final parenting orders made on 21 October 2022 in some 68 respects, albeit only five counts were actually proceeded with.
By Notice of Appeal filed 3 September 2024, the father contends that in dismissing the Contravention Application, the primary judge erred, and if the appeal succeeds, seeks substantial variation to the underlying parenting orders.
On 30 September 2024 an Appeal Judicial Registrar ordered that by 21 October 2024 the father produce transcript of the hearing before the primary judge, in default of which the appeal would be taken to be abandoned. Now by Application in an Appeal…

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 Balfour & Ferber

Details

AGLC: Balfour & Ferber [2024] FedCFamC1A 179
Case: [2024] FedCFamC1A 179
Decision Date: 11 October 2024

CaseChat Overview and Summary

In the matter of Balfour & Ferber, the appellant, Mr Balfour, sought relief from the obligation to obtain a transcript of the primary proceedings in a family law case. He is currently incarcerated and unable to afford the transcript. The case was heard in the Federal Circuit and Family Court of Australia, Appellate Division. The respondent, Ms Ferber, did not oppose the application. The central legal issue was whether the appellant should be excused from obtaining the transcript due to his financial constraints and incarceration, which would otherwise deprive him of the opportunity to prosecute his appeal.

The court acknowledged that, while the appellant was responsible for obtaining the transcript under Rule 13.19(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, failing to do so would lead to the abandonment of his appeal under Rule 13.22. However, the court emphasised that the appellant should not be deprived of his right to appeal merely because he could not obtain the transcript. Given the appellant’s financial constraints and the non-opposition from the respondent, the court considered it appropriate to dispense with the requirement for the appellant to obtain the transcript.

The court concluded that the appellant should not be precluded from prosecuting his appeal and granted the application. However, the court made it clear that the appellant must still obtain the transcript of the proceedings for the purpose of his appeal. The court's order, made by consent, dispensed with the requirement for the appellant to obtain the transcript, thereby discharging Orders 2 and 3 of the orders made on 30 September 2024. This decision ensured that the appellant could proceed with his appeal while also recognising the practical challenges he faced in obtaining the necessary documents.

Orders

Orders of the court

NAA 225 of 2024

MLC 6089 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR BALFOUR

Appellant

AND:

MS FERBER

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

10 OCTOBER 2024

ON 10 OCTOBER 2024 THE COURT ORDERED BY CONSENT THAT:

1. The requirement for the appellant to obtain transcript of the proceedings of 16 August 2024 is dispensed with, such that Orders 2 and 3 of the orders made 30 September 2024 are discharged.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

However, the father in prosecution of his appeal must obtain the transcript of the proceedings below. Rule 13.19(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), relevantly provides:Preparation of appeal book and obtaining transcript…(4)The appellant or, if so ordered, the cross-appellant is responsible for obtaining any transcript of the hearing relevant to the appeal or cross-appeal.(Emphasis added) In default of compliance, r 13.22 of the Rules then deems the appeal to be abandoned:Failure to file appeal book or transcript by due date…(2)If the appellant fails to file the transcript by the date ordered, the appeal is taken to be abandoned. As I have indicated on 30 September 2024 an Appeal Judicial Registrar ordered that the father produce digital transcript of the contravention hearing by 21 October 2024. In his affidavit filed the same day the father says:5.As [the father] is self-represented and currently incarcerated he does not have the financial means to obtain and provide a digital transcript of the final hearing before [the primary judge] on 16 August 2024 to the court.(Affidavit of the father filed 30 September 2024) Significantly the father does not seek transcript be provided by the court, but rather a general dispensation with it being provided at all. Returning to his appeal, the grounds of appeal are as follows:1.The learned Judge gave insufficient consideration to the evidence submitted by [the father] as a whole in support of the contravention application. Further evidence was offered to the Judge during the hearing by [the father] to assist in the allegations, however the method of delivery was rejected by the Judge.2.Being aware of [the father’s] circumstances and unsuccessful subpoena requests to obtain evidence, the Judge could have used her discretionary powers to stand down or adjourn the matter giving [the father] procedural fairness. The primary evidence submitted by [the father] to prove the contravention by the respondent could have been re-obtained by [the father] without redaction with the issuing of a subpoena. Without the redacted data the contravention allegation made by [the father] would have been proven without doubt.3.[The father] alleges at no time did the Judge consider the best interests of the child. [The father] claims that on the balance of probabilities the alleged contravention was proven. The evidence supports the fact that [the father] had not spoken with his son since January 2024 however this was not addressed at any time during the hearing. The Judge has not considered the long-term damage the alleged contravention by the respondent is causing the child.4.[The father] claims that the Judge misinterpreted the final parenting orders allowing the father to write one (1) letter per week to his child. [The father] believes at the time of making the final parenting orders the Judge intended to provide the father with the ability to write to his child. The Judge was wrong in her interpretation of the order and in determining that the mother was not obligated to provide the child with the letters sent by the father.

NAA 225 of 2024 MLC 6089 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR BALFOUR Appellant
AND:	MS FERBER Respondent

Appeal from:	Balfour & Ferber (No 2) [2024] FedCFamC2F 1162
Appeal number:	NAA 225 of 2024
File number:	MLC 6089 of 2021
Judgment of:	TREE J
Date of judgment:	11 October 2024
Catchwords:	FAMILY LAW – APPEAL – Application in an Appeal – Where the father seeks relief from the obligation to obtain the transcript of the primary proceedings – Where the father is currently incarcerated – Where with one exception the transcript would not inform the father’s grounds of appeal – Where the father should not be deprived of the opportunity to prosecute his appeal because he cannot obtain the transcript – Where the application is not opposed – Application granted.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.19, 13.22
Number of paragraphs:	16
Date of hearing:	10 October 2024
Place:	Cairns (via video link)
The Appellant:	Litigant in Person
The Respondent:	Litigant in Person

ORDER MADE BY:	TREE J
DATE OF ORDER:	10 OCTOBER 2024