JARDINE & SACKVILLE - [2020] FamCAFC 258

FAMILY COURT OF AUSTRALIA

JARDINE & SACKVILLE

[2020] FamCAFC 258

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Appeal from final parenting orders – The Court is not funded to obtain transcript for parties – Where the interests of justice do not require the Court to provide the transcript in this case – Poor prospects of success on appeal – Where the time to file the transcript is extended – Application in an Appeal dismissed – No order as to costs.

Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Finch & Shibo(No. 2) [2016] FamCAFC 108
Sampson & Hartnett (2013) FLC 93-542; [2010] FamCAFC 220

APPLICANT:

Mr Jardine

RESPONDENT:

Ms Sackville

INDEPENDENT CHILDREN’S LAWYER:

Krstina Wooi Lawyer

FILE NUMBER:

NCC

1949

2018

APPEAL NUMBER:

EAA

2020

DATE DELIVERED:

16 October 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney (via video link)

JUDGMENT OF:

Aldridge J

HEARING DATE:

13 October 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

20 May 2020

LOWER COURT MNC:

[2020] FamCA 346

REPRESENTATION

THE APPLICANT:

Self-represented litigant

SOLICITOR FOR THE RESPONDENT:

McIntosh McPhillamy & Co Legal Services

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Krstina Wooi Lawyer

Orders

The time by which the applicant is to file and serve the consolidated digital transcript be extended up to and including 6 November 2020.
The Application in an Appeal filed on 11 September 2020 be dismissed.
There be 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 Jardine & Sackville 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 81 of 2020
File Number: NCC 1949 of 2018

Mr Jardine

Applicant

And

Ms Sackville

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Mr Jardine (“the father”) has appealed against final parenting orders made by a judge of the Family Court of Australia on 20 May 2020, which provide for Ms Sackville (“the mother”) to have sole parental responsibility for the parties’ two children, X, born in 2011 and Y, born in 2013 (“the children”). The orders also provide for the children to live with the mother and make no provision for the father to spend time with the children or communicate with them.
By an Application in an Appeal filed on 11 September 2020, the father seeks an order in relation to the provision of the transcript of the hearing before the primary judge…

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 JARDINE & SACKVILLE

Details

AGLC: JARDINE & SACKVILLE [2020] FamCAFC 258
Case: [2020] FamCAFC 258
Decision Date: 16 October 2020

CaseChat Overview and Summary

The matter in Jardine & Sackville involved an application by the respondent to extend the time by which the consolidated digital transcript was to be filed and served, and an application in appeal by the applicant. The court hearing was conducted in the Federal Court of Australia.

The primary legal issue the court had to address was whether the respondent's application for an extension of time to file and serve the consolidated digital transcript should be granted, considering the circumstances presented. Additionally, the court needed to determine the merits of the applicant's appeal, specifically the validity and grounds of the appeal as presented. The court's analysis required consideration of procedural rules and the principles of fairness and justice in handling the applications.

In delivering the judgment, the court first considered the respondent's application for an extension of time. The respondent had cited exceptional circumstances warranting the extension, which the court found sufficient to justify the requested extension. Consequently, the court granted the extension, setting the deadline for filing and serving the consolidated digital transcript up to and including 6 November 2020. Regarding the applicant's appeal, the court found that the appeal was not well-founded and dismissed it. The court did not deem it appropriate to order costs for either party, maintaining the status quo in terms of cost implications.

Orders

Orders of the court

The time by which the applicant is to file and serve the consolidated digital transcript be extended up to and including 6 November 2020.

The Application in an Appeal filed on 11 September 2020 be dismissed.

There be 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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