Darley & Darley - [2019] FamCAFC 238

FAMILY COURT OF AUSTRALIA

DARLEY & DARLEY

[2019] FamCAFC 238

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – TRANSCRIPT – Where the mother filed multiple Applications in an Appeal – Where the mother has three appeals being heard concurrently – Where the mother seeks transcript be provided in respect of all three first instance hearings – Consideration of Forbes & Bream (2008) 222 FLR 96 and Sampson & Hartnett (2013) FLC 93-542 – Where the mother acknowledges she has the financial resources to purchase transcript – Where impecuniosity ought be established in respect of applications for the Court to provide transcript for appeals – Where the Court, fortuitously, has copies of a significant portion of the transcript sought by the mother – Where that transcript is to be released to the parties – Where the mother is permitted to listen to the audio of the remaining hearings to determine the transcript she requires for her appeal – Applications dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where one of the mother’s appeals was deemed abandoned due to a failure to file her supplementary appeal book – Where the mother claims to have filed her supplementary appeal book on time via email – Where the mother was permitted to make oral application for reinstatement – Where the delay has not been substantial and it appeared to be explained in that there had been some breakdown or hiatus in communication, such that any default was either illusory or at least not intentional – Where no prejudice to any other party was identified – Oral application granted.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO ISSUE SUBPOENAS – Where part of the mother’s appeal challenges the trial judge’s refusal to permit her to issue subpoenas to establish her claims that the father suffers mental health issues – Where the mother seeks to formulate an application for further evidence to be adduced on appeal referable to the father’s medical records – Where fairness dictates that the mother have some opportunity to establish the challenge she seeks to mount on appeal – Where it is a matter for the Full Court whether such subpoena material is accepted as further evidence – Application granted.

Family Law Act 1975 (Cth) s 102QB

Family Law Rules 2004 (Cth) rr 22.18, 22.21, 22.44

Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189
Sampson & Hartnett (2013) FLC 93-542; [2010] FamCAFC 220

WJD v TEK (1998) 72 ALJR 1323; [1998] 9 Leg Rep SL4a

APPLICANT:

Ms Darley

RESPONDENT:	Mr Darley
INDEPENDENT CHILDREN’S LAWYER:		Norman & Kingston Solicitors

FILE NUMBER:

BRC

2317

2013

APPEAL NUMBERS:	NOA	9	of	2019
NOA	39	of	2019
NOA	83	of	2019

DATE DELIVERED:

Orders made: 4 December 2019

Reasons for judgment delivered 6 December 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

4 December 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT…

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

AGLC: Darley & Darley [2019] FamCAFC 238
Case: [2019] FamCAFC 238
Decision Date: 6 December 2019

CaseChat Overview and Summary

The case of Darley & Darley involves a mother who filed multiple applications in relation to an ongoing appeal in family law matters. The mother had three concurrent appeals and sought transcripts of all three first instance hearings. The legal issues before the court included whether the mother could be granted transcripts, whether her appeal could be reinstated after being deemed abandoned, and whether she could issue subpoenas for further evidence on appeal. The court considered relevant authorities and the financial means of the mother. The court found that the mother could access the audio of the remaining hearings and had the resources to purchase the transcripts, but nevertheless decided to release a significant portion of the requested transcript fortuitously available to the court. The mother's application for reinstatement of one of the appeals was granted, as the delay in filing the supplementary appeal book was not substantial and there was no prejudice to the other party. Finally, the court granted the mother leave to issue subpoenas for further evidence on appeal to ensure fairness in establishing her claims against the father's mental health issues.

The court's reasoning was based on a balance between the mother's need for transcripts and her ability to purchase them, the circumstances surrounding the delay in filing the supplementary appeal book, and the need for fairness in the appeal process. The court emphasised the importance of communication and the need to avoid any prejudice to the other party. The court also noted that it was within the Full Court's discretion to accept the subpoena material as further evidence. The court's outcome was that the mother's applications for transcripts and reinstatement were granted, while the application for leave to issue subpoenas was also granted to ensure fairness in the appeal process. The court's decision demonstrates the importance of considering the specific circumstances of each case and the need for a balanced approach in family law appeals.

Orders