Fullmer & Omeros - [2022] FedCFamC1A 6

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Fullmer & Omeros [2022] FedCFamC1A 6

Appeal from: Fullmer & Omeros (No 4) [2021] FedCFamC2F 319

Appeal number(s): NAA 75 of 2021

File number(s): MLC 7203 of 2016

Judgment of: AUSTIN J

Date of judgment: 31 January 2022

Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Relief from obligation to file transcript – Where the appellant seeks relief on the basis that he is unemployed and cannot afford the cost – Where the respondent opposed the application – Where the appellant asserted oral evidence of witnesses was important to the prospects of the appeal’s success, but still pressed his application – Where the appellant cannot be ordered to procure and file transcript which the evidence shows he cannot afford – Order made – Any requirement for the appellant to file in the appeal a transcript of the proceedings before the primary judge is dispensed with.

Legislation:
Family Law Act 1975 (Cth) s 70NBA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.19(4), 13.22(2)

Number of paragraphs: 12

Date of hearing: 31 January 2022

Place: Newcastle

Counsel for the Appellant: Litigant in person

Counsel for the Respondent: Litigant in person
ORDERS

NAA 75 of 2021
MLC 7203 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR FULLMER

Appellant

AND:
MS OMEROS

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

31 JANUARY 2022

THE COURT ORDERS THAT:
1.Orders 2, 3 and 4 made by the Appeal Registrar on 18 January 2022 are discharged.
2.Any requirement under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) for the appellant to file in the appeal transcript of the proceedings before the primary judge on 20 and 24 August 2021 is dispensed with.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fullmer & Omeros has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

The father appeals from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 5 November 2021 determining the Application-Contravention he brought against the respondent mother on 4 March 2021.
The Application-Contravention was intended to sanction the mother for multiple alleged contraventions, without reasonable excuse, of parenting orders previously made between the parties on 6 March 2019 in respect of their only child. The Application initially comprised 27 counts (at [2(h)]), but many…

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 Fullmer & Omeros

Details

AGLC: Fullmer & Omeros [2022] FedCFamC1A 6
Case: [2022] FedCFamC1A 6
Decision Date: 31 January 2022

CaseChat Overview and Summary

The appellant, Mr Fullmer, sought relief from an obligation to file a transcript of the proceedings before the primary judge in an appeal against a decision in family law proceedings. The respondent, Ms Omeros, opposed the application. The appellant argued that the oral evidence of witnesses was important to the prospects of the appeal’s success, but still pressed his application on the basis that he was unemployed and could not afford the cost of filing a transcript. The appellant argued that, in the circumstances, he should not be ordered to procure and file a transcript which the evidence showed he could not afford.

The court considered that the appellant was not seeking relief from the obligation to file a transcript on the basis that the appeal was frivolous or vexatious. Instead, the appellant was seeking relief from the obligation on the basis that he could not afford the cost. The court noted that the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provided that an appellant could be relieved from the obligation to file a transcript if the court was satisfied that the appellant could not afford to procure and file the transcript. The court held that it was satisfied that the appellant could not afford to procure and file a transcript of the proceedings before the primary judge. The court discharged the orders which had required the appellant to file a transcript of the proceedings before the primary judge.

The court made an order that any requirement for the appellant to file in the appeal a transcript of the proceedings before the primary judge on 20 and 24 August 2021 is dispensed with. The court discharged orders 2, 3 and 4 made by the Appeal Registrar on 18 January 2022.

Orders

Orders of the court

NAA 75 of 2021

MLC 7203 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR FULLMER

Appellant

AND:

MS OMEROS

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

31 JANUARY 2022

THE COURT ORDERS THAT:

1. Orders 2, 3 and 4 made by the Appeal Registrar on 18 January 2022 are discharged.

2. Any requirement under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) for the appellant to file in the appeal transcript of the proceedings before the primary judge on 20 and 24 August 2021 is dispensed with.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 75 of 2021 MLC 7203 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR FULLMER Appellant
AND:	MS OMEROS Respondent

Appeal from:	Fullmer & Omeros (No 4) [2021] FedCFamC2F 319
Appeal number(s):	NAA 75 of 2021
File number(s):	MLC 7203 of 2016
Judgment of:	AUSTIN J
Date of judgment:	31 January 2022
Catchwords:	FAMILY LAW – APPEAL – Application in an Appeal – Relief from obligation to file transcript – Where the appellant seeks relief on the basis that he is unemployed and cannot afford the cost – Where the respondent opposed the application – Where the appellant asserted oral evidence of witnesses was important to the prospects of the appeal’s success, but still pressed his application – Where the appellant cannot be ordered to procure and file transcript which the evidence shows he cannot afford – Order made – Any requirement for the appellant to file in the appeal a transcript of the proceedings before the primary judge is dispensed with.
Legislation:	Family Law Act 1975 (Cth) s 70NBA Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.19(4), 13.22(2)
Number of paragraphs:	12
Date of hearing:	31 January 2022
Place:	Newcastle
Counsel for the Appellant:	Litigant in person
Counsel for the Respondent:	Litigant in person

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	31 JANUARY 2022