Chisholm & Roberts - [2009] FamCAFC 57

FAMILY COURT OF AUSTRALIA

CHISHOLM & ROBERTS

[2009] FamCAFC 57

FAMILY LAW - APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Where applicant seeks the Court provide transcript of the first instance proceedings at its own cost – Where applicant asserts she is impecunious – Where application opposed by respondent – Where application neither opposed nor supported by independent children’s lawyer – Where competing considerations of public policy and justice – Where not able to determine at this stage whether transcript will be necessary – Application stood over to the Full Court hearing the appeal.

FAMILY LAW - APPLICATION IN AN APPEAL – CASE STATED TO FULL COURT – Where case not stated by Federal Magistrate – Where proposed case stated not to determine a question of law in proceedings before the Federal Magistrate – Where case not stated by Judge or Federal Magistrate and at least one of the parties as required by s 94A of the Family Law Act 1975 – Application dismissed.

FAMILY LAW - APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where application prematurely made – Where the Family Law Rules 2004 make adequate provision for the filing of such applications – Application refused.

FAMILY LAW - COSTS – The independent children’s lawyer costs are reserved to the Full Court hearing the appeal.

Family Law Act 1975 (Cth) – s 4, s 94A,

Daff & Daff (1984) FLC 91-516
Forbes & Bream [2008] FamCAFC 189
Mullane & Mullane (1980) FLC 90-826

APPLICANT:

Ms Chisholm

RESPONDENT:

Mr Roberts

INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan

FILE NUMBER:

SYM

8753

2006

APPEAL NUMBER:

2009

DATE DELIVERED:

13 February 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Boland J

HEARING DATE:

13 February 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

23 December 2009

LOWER COURT MNC:

[2008] FMCAfam 1419

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Potkonyak

ADVOCATE FOR THE RESPONDENT:

Mr Roberts appeared in Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Fernie as agent for Mark Whelan

Orders

That the appellant’s application for provision of transcript of the proceedings before Federal Magistrate Sexton be stood over for consideration by the Full Court hearing the appeal.
That the appellant may be provided at her cost the CDs of the sound files of the proceedings, excluding the reasons for judgment, before Federal Magistrate Sexton on 15 August 2008, 19 August 2008, 3, 4 and 5 December 2008.
That any application to adduce further evidence be made in accordance with Chapter 22 of the Family Law Rules, 2004 or as otherwise ordered by the Full Court hearing the appeal.
That the Application in an Appeal filed 9 February 2009 is otherwise dismissed.
That the appellant file and serve on or before 20 February 2009 an amended draft appeal book index setting out with particularity the dates of relevant applications and responses together with details of deponents of affidavits and date of filing of such affidavits. The appellant shall include in the draft…

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 Chisholm & Roberts

Details

AGLC: Chisholm & Roberts [2009] FamCAFC 57
Case: [2009] FamCAFC 57
Decision Date: 13 February 2009

CaseChat Overview and Summary

The appellant in this matter sought various orders from the Family Court of Australia, including the provision of a transcript of the proceedings before the Federal Magistrate, the opportunity to adduce further evidence, and an order stating a case to the Full Court. The respondent opposed the application, and the independent children’s lawyer neither opposed nor supported the application. The appellant argued she was impecunious and needed the transcript to pursue her appeal, while the respondent argued that the application was premature and that the Family Law Rules 2004 already provided for the filing of such applications. The court had to decide whether to grant the application for a transcript, whether to state a case to the Full Court, and whether to allow the appellant to adduce further evidence.

The court found that the application for the transcript could not be determined at that stage, as it was not clear whether the transcript would be necessary. The application was thus stood over to the Full Court hearing the appeal. The court also found that the case had not been properly stated to the Full Court, as the proposed case did not determine a question of law in the proceedings before the Federal Magistrate, and that it had not been stated by both the Judge or Federal Magistrate and at least one of the parties as required by section 94A of the Family Law Act 1975. The application to state a case was thus dismissed. The court further found that the application to adduce further evidence was premature, and that the Family Law Rules 2004 already provided for the filing of such applications. The application to adduce further evidence was thus refused.

The court also made several other orders in the case. The appellant was allowed to be provided at her cost the CDs of the sound files of the proceedings before the Federal Magistrate, excluding the reasons for judgment, on certain dates. The appellant was also directed to file and serve an amended draft appeal book index setting out with particularity the dates of relevant applications and responses, together with details of deponents of affidavits and date of filing of such affidavits, and the details of the written submissions provided to the Federal Magistrate. The court also made orders regarding dispensation from compliance with certain rules of the Family Law Rules 2004, and allowed the appellant to apply for the Court to pay the cost of the sound files ordered, provided that such application was supported by a sworn Financial Statement. Finally, the court reserved the costs of the independent children’s lawyer to the Full Court.

In conclusion, the court stood over the application for the provision of a transcript of the proceedings before the Federal Magistrate to the Full Court hearing the appeal, dismissed the application to state a case to the Full Court, refused the application to adduce further evidence, and made several other orders regarding the filing of documents and the payment of costs. The case highlights the importance of following the proper procedures when making applications in family law matters, and the need for parties to be aware of the relevant rules and legislation.

Orders

Orders of the court

That the appellant’s application for provision of transcript of the proceedings before Federal Magistrate Sexton be stood over for consideration by the Full Court hearing the appeal.

That the appellant may be provided at her cost the CDs of the sound files of the proceedings, excluding the reasons for judgment, before Federal Magistrate Sexton on 15 August 2008, 19 August 2008, 3, 4 and 5 December 2008.

That any application to adduce further evidence be made in accordance with Chapter 22 of the Family Law Rules, 2004 or as otherwise ordered by the Full Court hearing the appeal.

That the Application in an Appeal filed 9 February 2009 is otherwise dismissed.

That the appellant file and serve on or before 20 February 2009 an amended draft appeal book index setting out with particularity the dates of relevant applications and responses together with details of deponents of affidavits and date of filing of such affidavits. The appellant shall include in the draft appeal details of the written submissions including the date thereof provided to Federal Magistrate Sexton for the purpose of the proceedings.

That there be dispensation from compliance with Rule 22.17(2)(b) and Rule 22.20(3)(j) of the Family Law Rules, 2004.

That the appellant may on filing an Application in an Appeal apply for the Court to pay the cost of the sound files ordered today provided however if such application is made it must be supported by a sworn Financial Statement.

That any party be at liberty to apply for any further directions to the Honourable Justice Boland (or if not reasonably available to another member of the Appeal Division) upon seven (7) days notice in writing to the other parties and to the Regional Appeal Registrar in the Sydney Registry.

That the Independent Children’s Lawyer’s costs of and incidental to this hearing be reserved to the Full Court

10.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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