HALBERT & MILLSON - [2020] FamCAFC 173

FAMILY COURT OF AUSTRALIA

HALBERT & MILLSON

[2020] FamCAFC 173

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Oral application for reinstatement – Where the Digital Appeal Book was filed 11 minutes late – Delay explained – Appeal not so weak as to render it futile – Appeal reinstated.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of written version of the transcript – Order made for the applicant mother to listen to the audio version of the transcript – Application otherwise dismissed – No order as to costs.

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) 22.13

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Forbes & Bream [2008] FamCAFC 189
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Rand & Rand [2009] FamCAFC 88
Sampson & Hartnett(Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220

APPLICANT:

Ms Halbert

RESPONDENT:

Mr Millson

FILE NUMBER:

SYC

6260

2007

APPEAL NUMBER:

EAA

2020

DATE DELIVERED:

21 July 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney (via video link)

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

14 July 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

27 November 2019

LOWER COURT MNC:

[2019] FamCA 869

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Saw

SOLICITOR FOR THE APPLICANT:

Law Society of NSW
The Pro Bono Scheme

COUNSEL FOR THE RESPONDENT:

Mr Blackah

SOLICITOR FOR THE RESPONDENT:

G & D Lawyers

SOLICITOR ADVOCATE FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Mr Levy

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Aid NSW

Orders

The Appeal EAA 4 of 2020 filed on 21 January 2020 be reinstated.
The applicant be permitted to proceed with the appeal without having included in the Digital Appeal Book the transcript of proceedings on 1, 2 and 3 July 2019 but may do so if advised.
The Eastern Appeals Registrar is requested to make arrangements for the applicant to be able to listen (at a registry) to an audio recording of the trial conducted on 1, 2 and 3 July 2019 at a time convenient to the applicant and the registry.
The Application in an Appeal filed on 22 June 2020 is otherwise dismissed.
No order as to costs.

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 Halbert & Millson 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:…

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 HALBERT & MILLSON

Details

AGLC: HALBERT & MILLSON [2020] FamCAFC 173
Case: [2020] FamCAFC 173
Decision Date: 21 July 2020

CaseChat Overview and Summary

In the case of Halbert & Millson, the mother sought to reinstate her appeal against a decision made in the Family Court of Australia. The appeal, filed 11 minutes past the deadline, pertained to a dispute involving family law, specifically the procedural and substantive aspects of the original court's decision. The mother argued that the late filing of the Digital Appeal Book was due to circumstances beyond her control and that the appeal had merit, warranting its reinstatement.

The court was required to determine whether the late filing of the Digital Appeal Book was excusable and whether the appeal had sufficient grounds to be considered, despite the procedural error. The mother argued that the appeal was not so weak as to render it futile and requested that the appeal be reinstated. Additionally, she sought an order for the provision of a written transcript of the proceedings in lieu of the audio recording, which had been filed late. The court needed to balance the procedural requirements of timely filing against the merits of the appeal.

The court held that the delay in filing the Digital Appeal Book was excusable due to the circumstances presented by the mother. It found that the appeal was not so weak as to render it futile and granted the application to reinstate the appeal. However, the court dismissed the mother's application for a written transcript, ordering instead that she listen to the audio recording of the trial at a time convenient for her and the registry. The court also dismissed the application in an appeal without making any order as to costs.

The final orders included the reinstatement of the appeal, permission for the mother to proceed with the appeal without the transcript, and a request for the Eastern Appeals Registrar to arrange for the mother to listen to the audio recording of the trial. The application in an appeal was dismissed, and no order was made as to costs.

Orders

Orders of the court

The Appeal EAA 4 of 2020 filed on 21 January 2020 be reinstated.

The applicant be permitted to proceed with the appeal without having included in the Digital Appeal Book the transcript of proceedings on 1, 2 and 3 July 2019 but may do so if advised.

The Eastern Appeals Registrar is requested to make arrangements for the applicant to be able to listen (at a registry) to an audio recording of the trial conducted on 1, 2 and 3 July 2019 at a time convenient to the applicant and the registry.

The Application in an Appeal filed on 22 June 2020 is otherwise dismissed.

No order as to costs.

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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