DUTNALL & RALLIN - [2020] FamCAFC 265

FAMILY COURT OF AUSTRALIA

DUTNALL & RALLIN

[2020] FamCAFC 265

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of transcript – Where the applicant seeks an order that the Court provide the trial transcript at its own expense – Consideration of the factors in Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 – No exceptional circumstances which would require the Court to provide the transcript – Application dismissed – Order made to discharge procedural orders to file the transcript.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Vacate hearing date – Where the appeal is against procedural orders – Where the applicant is incarcerated – Limited factual controversy – Requirement for the prompt and efficient disposal of litigation – Application dismissed.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Forbes & Bream [2008] FamCAFC 189
Sampson & Hartnett(Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220

APPLICANT:

Mr Dutnall

RESPONDENT:

Ms Rallin

INDEPENDENT CHILDREN’S LAWYER:

John Spence & Associates

FILE NUMBER:

SYC

3232

2016

APPEAL NUMBER:

EAA

110

2020

DATE DELIVERED:

2 November 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

In Chambers

JUDGMENT OF:

Aldridge J

HEARING DATE:

Heard by way of written submissions

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

6 July 2020

LOWER COURT MNC:

[2020] FCCA 2257

REPRESENTATION

APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

Sexton Family Law

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

John Spence & Associates

Orders

The Application in an Appeal for the provision of transcript filed on 12 October 2020 is dismissed.
The Application in an Appeal to vacate the date of the appeal hearing filed on 12 October 2020 is dismissed.
The Application in an Appeal to adduce further evidence filed on 12 October 2020 is adjourned to the appeal hearing.
Orders 2.12, 4, 5 and 6 made by Registrar Cameron on 22 September 2020 are discharged so that the applicant is not required to file a copy of the transcript in Appeal No. EAA 110 of 2020.

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 Dutnall & Rallin 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: EAA 110 of 2020
File Number: SYC 3232 of 2016

Mr Dutnall

Applicant

And

Ms Rallin

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

In longstanding parenting…

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 DUTNALL & RALLIN

Details

AGLC: DUTNALL & RALLIN [2020] FamCAFC 265
Case: [2020] FamCAFC 265
Decision Date: 2 November 2020

CaseChat Overview and Summary

In the Family Court, the applicant, Dutnall, appealed against procedural orders made in a family law matter. The respondent, Rallin, opposed the application, which sought the provision of a transcript, the vacating of the appeal hearing date, and the adducing of further evidence. The applicant filed the application while incarcerated. The court had to determine whether the applicant should be granted a transcript at the court's expense, whether the hearing date should be vacated, and whether additional evidence should be admitted.

The court examined the criteria outlined in Sampson & Hartnett, assessing whether exceptional circumstances warranted the provision of a transcript at the court's expense. The applicant argued that the lack of a transcript would hinder the appeal's effectiveness due to the incarceration. However, the court found no exceptional circumstances justifying the provision of a transcript at the court's expense, dismissing the application. Regarding the appeal hearing date, the court noted the limited factual controversy and the need for the prompt and efficient disposal of litigation, leading to the dismissal of the application to vacate the hearing date.

The court concluded that the application to adduce further evidence would be considered during the appeal hearing, and procedural orders mandating the filing of a transcript were discharged. The appeal's procedural orders, including the requirement to file a transcript, were dismissed, allowing the applicant to proceed without the necessity of filing the transcript. This decision reflects the court's commitment to balancing the rights of the parties with the efficient administration of justice.

Orders

Orders of the court

The Application in an Appeal for the provision of transcript filed on 12 October 2020 is dismissed.

The Application in an Appeal to vacate the date of the appeal hearing filed on 12 October 2020 is dismissed.

The Application in an Appeal to adduce further evidence filed on 12 October 2020 is adjourned to the appeal hearing.

Orders 2.12, 4, 5 and 6 made by Registrar Cameron on 22 September 2020 are discharged so that the applicant is not required to file a copy of the transcript in Appeal No. EAA 110 of 2020.

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

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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