Blatch & Blatch - [2022] FedCFamC1A 228

Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Blatch & Blatch [2022] FedCFamC1A 228

Appeal from: Blatch & Blatch (No 5) [2022] FedCFamC1F 651

Appeal number: NAA 215 of 2022

File number: SYC 1613 of 2021

Judgment of: AUSTIN J

Date of judgment: 23 December 2022

Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Application for an extension of time to file the transcript, or alternatively, that it be procured at the Court’s expense – Where the proposed extension would necessarily entail the appeal hearing being vacated – Where the time for compliance has already been extended once – Where the appellant has failed to demonstrate a case for the Court to procure the transcript at its cost – Where the appellant shall be granted a short further extension of time within which to file the transcript – Where the appellant is relieved from consequences of a failure to file the transcript – Application otherwise dismissed.

Legislation:
Family Law Act 1975 (Cth) Pts VII, VIII

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

Cases cited: Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220

Number of paragraphs: 31

Date of hearing: 23 December 2022

Place: Newcastle (via video link)

The Appellant: Litigant in person

Solicitor for the Respondent: Landers & Rogers

ORDERS

NAA 215 of 2022
SYC 1613 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR BLATCH

Appellant

AND:
MS BLATCH

Respondent

order made by:

AUSTIN J

DATE OF ORDER:

23 DECEMBER 2022

THE COURT ORDERS THAT:
1.The time for compliance with Order 4 made on 30 November 2022 is extended until 4.30 pm on Wednesday 4 January 2023, in default of which the appeal will not be deemed abandoned under r 13.22(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), but will then be prosecuted by the appellant without the benefit of transcript.
2.Otherwise:
(a)the Application in an Appeal filed by the appellant on 21 December 2022 is dismissed;
(b)the Response to an Application in an Appeal filed by the respondent on 22 December 2022 is dismissed; and
(c)the parties shall bear his and her own costs of the interlocutory dispute.

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 Blatch & Blatch has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

This appeal, brought by the appellant from…

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.

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Details

Case: [2022] FedCFamC1A 228
Decision Date

CaseChat Overview and Summary

The appellant, Mr Blatch, appeals against certain orders made in the Federal Circuit and Family Court of Australia (Division 1) in proceedings concerning his children and property. The appeal was filed on 28 September 2022, but only four of the 36 orders made were appealed. The appeal was listed for hearing on 1 February 2023. Mr Blatch, who is self-represented, applied on 21 December 2022 for an extension of time to file the transcript and for the appeal hearing to be vacated. The application was listed for urgent hearing on 23 December 2022. The respondent opposed the application and sought a costs order against Mr Blatch.

The court considered whether to grant Mr Blatch an extension of time to file the transcript and to vacate the appeal hearing. The court also considered whether to order a review of the original proceedings and whether to order the Court to procure the transcript at its expense. The court noted that Mr Blatch had already been granted one extension of time to file the transcript, and the appeal hearing was scheduled for February 2023. The court also noted that Mr Blatch's appeal was narrow, concerning only four of the 36 orders made. The court held that Mr Blatch had failed to demonstrate a case for the Court to procure the transcript at its cost. However, as an indulgence, Mr Blatch was granted a short extension of time within which to file the transcript. If he failed to file the transcript within the additional time allowed, he would need to prosecute his appeal without the transcript. The application for the appeal hearing to be vacated and the other applications were dismissed.

The court granted Mr Blatch an extension until 4 January 2023 to file the transcript, which is the date by which he must file his Summary of Argument. Otherwise, the application for an extension of time beyond that date was dismissed. The application for the appeal hearing to be vacated was dismissed. The application for the "review" of the entirety of the original proceedings, including the conduct of legal practitioners, was dismissed. The application for "judicial review" of orders made and adjournments granted during the original proceedings in 2021 was dismissed. The application for the Court to procure the transcript at its expense was dismissed, but Mr Blatch was granted a short extension of time within which to file the transcript. The parties were ordered to bear their own costs of the interlocutory dispute.

Orders