Barlow & Sellers (No 2) - [2022] FedCFamC1A 62

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Barlow & Sellers (No 2) [2022] FedCFamC1A 62

Appeal from: Barlow & Sellers [2021] FedCFamC1F 327

Appeal number(s): NAA 15 of 2022

File number(s): ADC 3611 of 2012

Judgment of: ALDRIDGE J

Date of judgment: 12 May 2022

Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Where the appellant seeks for the Court to purchase the transcript for the purpose of her appeal – Where the proposed grounds of appeal are not strongly arguable – No exceptional circumstance to justify the Court funding the provision of transcript – Where the requirement for the appellant to obtain transcript be dispensed with.

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.19(4)

Cases cited:
Forbes v Bream (2008) 222 FLR 96; [2008] FamCAFC 189

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Sampson & Hartnett (2013) FLC 93-542; [2010] FamCAFC 220

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Number of paragraphs: 23

Date of hearing: 5 May 2022

Place: Sydney (via video link)

The Appellant: Self-represented litigant

Counsel for the Respondent: Mr Roberts

Solicitor for the Respondent: Thomson & Associates

Counsel for the Independent Children’s Lawyer: Ms Olsson

Solicitor for the Independent Children’s Lawyer: Silkwoods Chambers
ORDERS

NAA 15 of 2022
ADC 3611 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS BARLOW

Appellant

AND:
MR SELLERS

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

12 MAY 2022

THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 12 April 2022 is dismissed.
2.Orders 2, 3 and 4 made by the appeal registrar on 7 March 2022 are discharged.
3.Any requirement under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) for the appellant to file in the appeal, a transcript of the proceedings before the primary judge, is dispensed with.

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 Barlow & Sellers has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:

By an Application in an Appeal filed on 12 April 2022, the applicant seeks an order that the Court obtain the transcript of the hearing the subject of her appeal.
The applicant and the respondent have two children who were born in 2010 and 2012. On 20 December 2021,…

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 Barlow & Sellers (No 2)

Details

AGLC: Barlow & Sellers (No 2) [2022] FedCFamC1A 62
Case: [2022] FedCFamC1A 62
Decision Date: 12 May 2022

CaseChat Overview and Summary

The appellant, Ms Barlow, sought leave from the court to have the court purchase the transcript of the proceedings in the Family Court for the purpose of an appeal against the decision made in the Family Court. The respondent, Mr Sellers, opposed the application on the basis that the proposed grounds of appeal were not strongly arguable and that there were no exceptional circumstances to justify the court funding the provision of the transcript. The Independent Children's Lawyer did not oppose the application but noted that the issue was one for the court to decide.

The court considered whether there were exceptional circumstances that would justify the court ordering the purchase of the transcript for the appellant. The court held that the proposed grounds of appeal were not strongly arguable and that there were no exceptional circumstances that would justify the court ordering the purchase of the transcript. The court noted that the appellant had failed to provide any evidence to support her application, and that the Independent Children's Lawyer did not oppose the application. The court held that any requirement under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) for the appellant to file in the appeal, a transcript of the proceedings before the primary judge, is dispensed with.

The court dismissed the application in an appeal filed on 12 April 2022 and discharged orders 2, 3 and 4 made by the appeal registrar on 7 March 2022. The court held that the appellant was not entitled to have the court purchase the transcript of the proceedings in the Family Court for the purpose of an appeal against the decision made in the Family Court. The court noted that the appellant had failed to provide any evidence to support her application and that the Independent Children's Lawyer did not oppose the application. The court held that the proposed grounds of appeal were not strongly arguable and that there were no exceptional circumstances that would justify the court funding the provision of the transcript.

Orders

Orders of the court

NAA 15 of 2022

ADC 3611 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS BARLOW

Appellant

AND:

MR SELLERS

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

12 MAY 2022

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 12 April 2022 is dismissed.

2. Orders 2, 3 and 4 made by the appeal registrar on 7 March 2022 are discharged.

3. Any requirement under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) for the appellant to file in the appeal, a transcript of the proceedings before the primary judge, is dispensed with.

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

Full text does not contain this section.

NAA 15 of 2022 ADC 3611 of 2012
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS BARLOW Appellant
AND:	MR SELLERS Respondent
INDEPENDENT CHILDREN’S LAWYER

Appeal from:	Barlow & Sellers [2021] FedCFamC1F 327
Appeal number(s):	NAA 15 of 2022
File number(s):	ADC 3611 of 2012
Judgment of:	ALDRIDGE J
Date of judgment:	12 May 2022
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Where the appellant seeks for the Court to purchase the transcript for the purpose of her appeal – Where the proposed grounds of appeal are not strongly arguable – No exceptional circumstance to justify the Court funding the provision of transcript – Where the requirement for the appellant to obtain transcript be dispensed with.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.19(4)
Cases cited:	Forbes v Bream (2008) 222 FLR 96; [2008] FamCAFC 189 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Sampson & Hartnett (2013) FLC 93-542; [2010] FamCAFC 220 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs:	23
Date of hearing:	5 May 2022
Place:	Sydney (via video link)
The Appellant:	Self-represented litigant
Counsel for the Respondent:	Mr Roberts
Solicitor for the Respondent:	Thomson & Associates
Counsel for the Independent Children’s Lawyer:	Ms Olsson
Solicitor for the Independent Children’s Lawyer:	Silkwoods Chambers

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	12 MAY 2022