COLLINS & RICARDO - [2016] FamCAFC 119

FAMILY COURT OF AUSTRALIA

COLLINS & RICARDO

[2016] FamCAFC 119

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant father sought leave to proceed without transcript of the proceedings below – leave granted.

FAMILY LAW – APPEAL – TRANSFER – LEAVE TO APPEAL – where the applicant father sought leave to appeal the procedural orders of Rees J transferring the proceedings to Cairns – where there is no merit in the appeal – where there is no substantial injustice to either party – leave refused – the father pay the fixed costs of the Independent Children’s Lawyer.

Family Law Act 1975 (Cth) s 117

APPLICANT:

Mr Collins

RESPONDENT:

Ms Ricardo

INDEPENDENT CHILDREN’S LAWYER:

Brian Samuels

FILE NUMBER:

SYC

4959

2009

APPEAL NUMBER:

171

2015

DATE DELIVERED:

20 June 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Murphy, Kent & Austin JJ

HEARING DATE:

20 June 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

17 September 2015

LOWER COURT MNC:

[2015] FamCA 779

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Bateman

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Brian Samuels & Associates

Orders

The Application in an Appeal filed 30 March 2016 seeking leave for the hearing of the application for leave to appeal to proceed without transcript of the proceedings below be allowed.
The application for leave to appeal filed by the father on 8 October 2015 be refused.
That the father pay the costs of the Independent Children’s Lawyer of and incidental to the application for leave to appeal fixed in the sum of $4,356.00 inclusive of GST to be paid on or before a date three months from the date of these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Collins & Ricardo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 171 of 2015
File Number: SYC 4959 of 2009

Mr Collins

Applicant

And

Ms Ricardo

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

Murphy J

On 17 September 2015 Justice Rees made an order that “these proceedings be transferred to the Cairns Registry of the Family Court of Australia”. The father of the child seeks leave to appeal that procedural order. It is not disputed that leave is required. That litigation history is traversed in her Honour’s Reasons and culminates with her Honour recording at [8] of the Reasons that:
On 23 September 2011 the father filed the first of many contravention applications. At the hearing of the applications for change of venue, the father informed me that there had been 32 contravention applications filed…
As her Honour points out, that application was but part of a lengthy litigation history, spanning now some seven years, lasting the vast majority of this child’s…

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 COLLINS & RICARDO

Details

AGLC: COLLINS & RICARDO [2016] FamCAFC 119
Case: [2016] FamCAFC 119
Decision Date: 20 June 2016

CaseChat Overview and Summary

In the case of Collins & Ricardo, the applicant, a father, sought leave to proceed with an appeal without the transcript of the proceedings from a lower court. The appeal pertained to a family law matter, specifically procedural orders made by Rees J, which had transferred the proceedings to Cairns. The court was tasked with deciding whether the father should be granted leave to proceed with his appeal without a transcript and whether the procedural orders transferring the case location were justified. Additionally, the court had to consider whether the father's appeal had merit and whether denying leave to appeal would cause substantial injustice to either party.

The court granted the father leave to proceed with his application for appeal without a transcript, acknowledging that this was permissible in certain circumstances. However, upon examining the substantive appeal, the court found no merit in the father's contentions regarding the transfer of the proceedings to Cairns. It was determined that the transfer was procedurally sound and did not result in substantial injustice to either party. Consequently, the court refused the father's application for leave to appeal the procedural orders.

The court's decision hinged on a careful consideration of the procedural rules regarding appeals and the merits of the father's arguments. It found that the procedural orders were appropriately made and that the transfer to Cairns was in the best interests of the case. The court further emphasised that there was no substantial injustice to either party, which solidified its decision to refuse leave to appeal.

In conclusion, the court granted the father's application to proceed with the appeal without a transcript but refused his application for leave to appeal the substantive procedural orders. As a result, the father was ordered to pay the fixed costs of the Independent Children's Lawyer, amounting to $4,356.00 inclusive of GST, to be paid within three months from the date of the orders.

Orders

Orders of the court

The Application in an Appeal filed 30 March 2016 seeking leave for the hearing of the application for leave to appeal to proceed without transcript of the proceedings below be allowed.

The application for leave to appeal filed by the father on 8 October 2015 be refused.

That the father pay the costs of the Independent Children’s Lawyer of and incidental to the application for leave to appeal fixed in the sum of $4,356.00 inclusive of GST to be paid on or before a date three months from the date of these orders.

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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