Bruce & Bruce - [2023] FedCFamC1A 225

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bruce & Bruce [2023] FedCFamC1A 225

Appeal from:
Bruce & Bruce [2023] FedCFamC1F 936

Bruce & Bruce (No 2) [2023] FedCFamC1F 1012

Appeal number(s): NAA 306 of 2023
NAA 327 of 2023

File number(s): NCC 4120 of 2020

Judgment of: ALDRIDGE J

Date of judgment: 8 December 2023

Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Applicant seeks expedition of appeals from final parenting orders and refusal of stay – Where it is in the interests of justice for the stay appeal to be expedited – Applicant seeks CCTV material from Courthouse – CCTV has no relevance to whether primary judge erred – Applicant seeks provision of transcripts – Applicant does not have capacity to obtain transcripts – Transcripts necessary for prosecution of appeal – Court to provide the transcripts.

Legislation:
Criminal Code Act 1995 (Cth) s 237B.4

Family Law Act 1975 (Cth)

Cases cited:
Newett & Newett [2023] HCASL 186

Newett & Newett (No 9) (2023) FLC 94-133; [2023] FedCFamC1A 23

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

Number of paragraphs: 25

Date of hearing: 8 December 2023

Place: Sydney (via video link)

Counsel for the Applicant: Self represented

Counsel for the Respondent: Self represented

The Independent Children's Lawyer: No appearance (submitting notice filed)
ORDERS

NAA 306 of 2023
NAA 327 of 2023
NCC 4120 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS BRUCE

Applicant

AND:
MR BRUCE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

8 DECEMBER 2023

THE COURT ORDERS THAT:
1.The appeal from the refusal of the stay application is fixed for hearing by the Full Court sitting in Sydney on 12 December 2023 at 2.15 pm.
2.The material that will be before the Court hearing the stay appeal, subject to Order 4 below, will be:
(a)the material identified in paragraphs 2 and 3 of the written submissions of the applicant filed on 8 December 2023;
(b)the primary judge’s reasons of 3 November 2023 and 24 November 2023;
(c)the Independent Children’s Lawyer’s case outline filed 13 October 2023; and
(d)the applicant’s case outline filed 16 October 2023.

3.There is no obligation to prepare an appeal book or have the transcript available by 12 December 2023.
4.The question of whether the Court will take into account the reasons for judgment delivered by Cleary J on 2 February 2022 is to be determined by the Court hearing the stay appeal.
5.The Court will obtain for the hearing of the substantive appeal the transcript of the hearing before the primary judge on 13 October 2023 and 16 October 2023–19 October 2023.
6.The balance of the Applications in an Appeal are dismissed.
7.The Responses to the Applications in an Appeal filed on 6 December 2023 are dismissed.

THE COURT NOTES THAT:
A.The written submissions filed by the applicant on 8 December 2023 will stand as her Summary of Argument for the stay 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 Bruce & Bruce

Details

AGLC: Bruce & Bruce [2023] FedCFamC1A 225
Case: [2023] FedCFamC1A 225
Decision Date: 8 December 2023

CaseChat Overview and Summary

The matter of Bruce & Bruce before the Family Court concerns an appeal against final parenting orders, with the applicant seeking the expedition of the appeal and a stay of the orders. The applicant also made several ancillary applications, including the provision of CCTV footage from the courthouse and transcripts of the proceedings. The appeal was heard by His Honour Judge Aldridge. The primary legal issues before the court were whether it was in the interests of justice for the appeal to be expedited, and whether the applicant should be granted a stay of the final parenting orders. Additionally, the court considered whether the applicant's request for CCTV footage and transcripts was relevant or necessary for the appeal.

Judge Aldridge found that the appeal should be expedited as it was in the interests of justice to do so. The court noted that the applicant had not demonstrated that the CCTV footage from the courthouse was relevant to the appeal, and thus rejected that application. However, the court recognised the importance of transcripts for the prosecution of the appeal, and ordered that the court would obtain the necessary transcripts for the hearing of the substantive appeal. The court also dismissed other ancillary applications, finding them not necessary for the appeal.

The court ordered that the appeal from the refusal of the stay application would be heard by the Full Court sitting in Sydney on 12 December 2023. The material before the court would include specified documents and reasons of the primary judge. The court did not require the preparation of an appeal book or the availability of a transcript by the hearing date, but would obtain the transcript of the hearing before the primary judge for the substantive appeal. The other applications in the appeal were dismissed, and the responses to the applications were also dismissed.

The court noted that the applicant's written submissions would stand as her summary of argument for the stay appeal, and that the stay appeal would be heard in person in Sydney. The form of the order was subject to the entry in the court's records.

Orders

Orders of the court

NAA 306 of 2023

NAA 327 of 2023

NCC 4120 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS BRUCE

Applicant

AND:

MR BRUCE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

8 DECEMBER 2023

THE COURT ORDERS THAT:

1. The appeal from the refusal of the stay application is fixed for hearing by the Full Court sitting in Sydney on 12 December 2023 at 2.15 pm.

2. The material that will be before the Court hearing the stay appeal, subject to Order 4 below, will be:

(a) the material identified in paragraphs 2 and 3 of the written submissions of the applicant filed on 8 December 2023;

(b) the primary judge’s reasons of 3 November 2023 and 24 November 2023;

(d) the applicant’s case outline filed 16 October 2023.

3. There is no obligation to prepare an appeal book or have the transcript available by 12 December 2023.

4. The question of whether the Court will take into account the reasons for judgment delivered by Cleary J on 2 February 2022 is to be determined by the Court hearing the stay appeal.

5. The Court will obtain for the hearing of the substantive appeal the transcript of the hearing before the primary judge on 13 October 2023 and 16 October 2023–19 October 2023.

6. The balance of the Applications in an Appeal are dismissed.

7. The Responses to the Applications in an Appeal filed on 6 December 2023 are dismissed.

THE COURT NOTES THAT:

A. The written submissions filed by the applicant on 8 December 2023 will stand as her Summary of Argument for the stay appeal.

B. The stay appeal will be heard in person in Sydney.

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 306 of 2023 NAA 327 of 2023 NCC 4120 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS BRUCE Applicant
AND:	MR BRUCE Respondent
INDEPENDENT CHILDREN'S LAWYER

Appeal from:	Bruce & Bruce [2023] FedCFamC1F 936 Bruce & Bruce (No 2) [2023] FedCFamC1F 1012
Appeal number(s):	NAA 306 of 2023 NAA 327 of 2023
File number(s):	NCC 4120 of 2020
Judgment of:	ALDRIDGE J
Date of judgment:	8 December 2023
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Applicant seeks expedition of appeals from final parenting orders and refusal of stay – Where it is in the interests of justice for the stay appeal to be expedited – Applicant seeks CCTV material from Courthouse – CCTV has no relevance to whether primary judge erred – Applicant seeks provision of transcripts – Applicant does not have capacity to obtain transcripts – Transcripts necessary for prosecution of appeal – Court to provide the transcripts.
Legislation:	Criminal Code Act 1995 (Cth) s 237B.4 Family Law Act 1975 (Cth)
Cases cited:	Newett & Newett [2023] HCASL 186 Newett & Newett (No 9) (2023) FLC 94-133; [2023] FedCFamC1A 23 Sampson & Hartnett (2013) FLC 93-542; [2010] FamCAFC 220
Number of paragraphs:	25
Date of hearing:	8 December 2023
Place:	Sydney (via video link)
Counsel for the Applicant:	Self represented
Counsel for the Respondent:	Self represented
The Independent Children's Lawyer:	No appearance (submitting notice filed)

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	8 DECEMBER 2023