DeLuca and Farnham - [2018] FamCAFC 246

FAMILY COURT OF AUSTRALIA

DELUCA & FARNHAM

[2018] FamCAFC 246

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Dispense With Full Transcript – Review of Registrar’s orders – Where leave is granted for the appeal to be heard without the requirement to include all transcripts of the trial proceedings in the appeal books.

APPLICANT:

Ms DeLuca

RESPONDENT:

Mr Farnham

INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

FILE NUMBER:

SYC

5417

2013

APPEAL NUMBER:

100

2018

DATE DELIVERED:

14 December 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

5 December 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

22 June 2018

LOWER COURT MNC:

[2018] FamCA 548

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lioumis

Orders

That the appellant be permitted to proceed with her appeal without having included in the appeal books:
(a)the transcript of proceedings dated 28, 29 and 30 November 2017 as identified in paragraph 15 of the applicant’s affidavit filed on 19 November 2018 and the transcript of the cross-examination of Mr M; and
(b)annexure ‘M’ to the respondent’s trial affidavit filed on 2 November 2017.
The appellant is only required to serve a second copy of the appeal books on the respondent if a solicitor files a Notice of Address for Service in the appeal and must provide the second set of appeal books within seven (7) days of said notice.
The costs of the Application in an Appeal filed on 19 November 2018 and the Response to an Application in an Appeal will be costs in the appeal.
The Application and Response referred to in the above order (Order 3) be otherwise dismissed.

IT IS NOTED:
(A)That the respondent withdraws his application for Order 3 as contained in his Response filed on 3 December 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 100 of 2018
File Number: SYC 5417 of 2013

Ms DeLuca

Applicant

And

Mr Fanham

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

By an Application in an Appeal filed on 19 November 2018, Ms DeLuca (“the applicant”) seeks orders that her appeal (EA 100 of 2018) be heard and determined without the full trial transcript, which occurred over ten days between 27 November 2017 and 27 February 2018. Further, the applicant seeks to amend,…

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 DeLuca and Farnham

Details

AGLC: DeLuca and Farnham [2018] FamCAFC 246
Case: [2018] FamCAFC 246
Decision Date: 14 December 2018

CaseChat Overview and Summary

DeLuca and Farnham is an appeal case involving the appellant, who is challenging certain procedural aspects of the proceedings. The case was heard by the court of appeal, which had to determine whether the appellant could proceed with her appeal under certain conditions. The legal issues at hand pertained to the inclusion of specific documents within the appeal books and the procedural requirements for serving additional copies of these books. The court was also required to address the costs associated with the application and response filed during the appeal process.

The court began by examining the procedural rules and their application to the circumstances of the case. It noted that while the appellant had not included certain documents within the appeal books, these omissions did not impede the court's ability to consider the merits of the appeal. The court reasoned that the absence of these documents would not prejudice the respondent, given the context of the case and the availability of other relevant materials. Furthermore, the court held that the appellant was only required to serve a second set of appeal books if a solicitor files a Notice of Address for Service in the appeal, with a timeframe of seven days for providing these additional books. Regarding costs, the court determined that the costs of the application and response should be considered as part of the appeal costs.

In its final orders, the court permitted the appellant to proceed with her appeal without the inclusion of specific transcripts and annexures in the appeal books. It stipulated that a second set of appeal books must only be served if a solicitor files a Notice of Address for Service, within a specified timeframe. Additionally, the court ruled that the costs of the application and response would be treated as part of the appeal costs, while dismissing the application and response otherwise. This decision ensures that the appeal process can proceed efficiently while adhering to procedural requirements.

Orders

Orders of the court

That the appellant be permitted to proceed with her appeal without having included in the appeal books:

(a) the transcript of proceedings dated 28, 29 and 30 November 2017 as identified in paragraph 15 of the applicant’s affidavit filed on 19 November 2018 and the transcript of the cross-examination of Mr M; and

(b) annexure ‘M’ to the respondent’s trial affidavit filed on 2 November 2017.

The appellant is only required to serve a second copy of the appeal books on the respondent if a solicitor files a Notice of Address for Service in the appeal and must provide the second set of appeal books within seven (7) days of said notice.

The costs of the Application in an Appeal filed on 19 November 2018 and the Response to an Application in an Appeal will be costs in the appeal.

The Application and Response referred to in the above order (Order 3) be otherwise dismissed.

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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