JEBBETT & COREY - [2020] FamCAFC 104

FAMILY COURT OF AUSTRALIA

JEBBETT & COREY

[2020] FamCAFC 104

FAMILY LAW – APPLICATION IN AN APPEAL – Provision of transcript – Where the mother seeks that relevant parts of the audio recording be made available instead of the transcript – Where substituting the audio recording for the transcript would not be efficient – Application dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Provision of transcript – Where the mother seeks that her Summary of Argument be allowed to exceed 15 pages – Where permitting the mother to rely on more extensive written submissions would allow her to present her case more efficiently – Order allowing the mother to rely on a Summary of Argument not exceeding 30 pages – Application otherwise dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Adduce further evidence – Where it is likely that both appeals will be heard simultaneously – Order allowing the parties to refer to the appeal book in Appeal NOA 54 of 2019 at the hearing of Appeal NOA 102 of 2019 – Question of adducing further evidence reserved to the Full Court – Application otherwise dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Adduce further evidence – Where there is no real prejudice to the father or the Independent Children’s Lawyer if the mother is allowed to rely on her Amended Notice of Appeal – Order allowing the mother to rely on her Amended Notice of Appeal – Application otherwise dismissed.

APPLICANT:

Ms Jebbett

RESPONDENT:

Mr Corey

INDEPENDENT CHILDREN’S LAWYER:

Norman & Kingston

FILE NUMBER:

BRC

9223

2017

APPEAL NUMBERS:

NOA
NOA

54
102

of
of

2019
2019

DATE DELIVERED:

1 May 2020

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

26 March 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

29 May 2019;

22 October 2019

LOWER COURT MNC:

[2019] FamCA 358;
[2019] FamCA 774

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Jones

SOLICITOR FOR THE RESPONDENT:

MLDG Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Kingston

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Norman & Kingston

Orders

The Application in an Appeal filed 4 December 2019 is dismissed.
Save that in Appeal NOA 54 of 2019 the applicant may rely upon a Summary of Argument not exceeding 30 pages in length, the Application in an Appeal filed 7 February 2020 is dismissed.
Save that:
(a) The parties be at liberty to refer to the appeal book in Appeal NOA 54 of 2019 at the hearing of Appeal NOA 102 of 2019; and
(b) The question of the admission of further evidence in Appeal NOA 102 of 2019 be reserved to the court hearing that appeal;
the Application in Appeal filed 2 March 2020 is dismissed.
Save that:
(a) The question of the admission of further evidence in Appeal NOA 54 of 2019 be reserved to the court hearing that appeal; and
(b) In Appeal NOA 54 of 2019, the applicant have leave…

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.

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Details

AGLC: JEBBETT & COREY [2020] FamCAFC 104
Case: [2020] FamCAFC 104
Decision Date: 1 May 2020

CaseChat Overview and Summary

Jebbett & Corey was the subject of an appeal concerning family law, with the mother applying for various orders to facilitate her appeal. The mother sought an audio recording of the proceedings instead of a transcript, more extensive written submissions, the ability to refer to the appeal book from a related appeal, and permission to rely on an amended notice of appeal. The court assessed the efficiency and fairness of each request in the context of the appeal process. In dismissing most of the applications, the court found that substituting the audio recording for the transcript would not be efficient, and permitting more extensive written submissions could disadvantage the opposing party. However, the court allowed the mother to rely on a Summary of Argument not exceeding 30 pages, believing it would help present her case more effectively. Additionally, the court permitted the parties to refer to the appeal book in the related appeal and reserved the question of admitting further evidence to the Full Court. The mother was also allowed to rely on her Amended Notice of Appeal in the related appeal, as there was no real prejudice to the father or the Independent Children’s Lawyer.

The court balanced the mother's right to present her case effectively against the need to ensure fairness and efficiency in the appeal process. In dismissing the application to replace the transcript with an audio recording, the court emphasised the importance of having a written record that both parties can rely on. The court recognised that the mother's request for more extensive written submissions could potentially prejudice the opposing party, as it might allow for a more detailed presentation of her case. However, by allowing a Summary of Argument not exceeding 30 pages, the court sought to strike a balance between comprehensive argumentation and the need to keep submissions within a reasonable length. The decision to permit reference to the appeal book in the related appeal and to reserve the question of admitting further evidence to the Full Court demonstrated the court's intention to manage the appeals efficiently while ensuring that all relevant information is considered.

The court's orders reflect a careful consideration of the practicalities and implications of each application. By dismissing most of the applications, the court maintained the procedural integrity of the appeal process. Allowing the mother to rely on a Summary of Argument not exceeding 30 pages and an Amended Notice of Appeal in the related appeal showed the court's willingness to adapt the rules to facilitate a fair hearing without unduly burdening the opposing party. The reservation of the question of admitting further evidence to the Full Court ensured that the final decision on this matter would be made by a court with a comprehensive understanding of both appeals. The orders demonstrate the court's commitment to ensuring that the appeal process is both efficient and fair, while also respecting the rights of all parties involved.

Orders

Orders of the court

The Application in an Appeal filed 4 December 2019 is dismissed.

Save that in Appeal NOA 54 of 2019 the applicant may rely upon a Summary of Argument not exceeding 30 pages in length, the Application in an Appeal filed 7 February 2020 is dismissed.

Save that:

(a) The parties be at liberty to refer to the appeal book in Appeal NOA 54 of 2019 at the hearing of Appeal NOA 102 of 2019; and

(b) The question of the admission of further evidence in Appeal NOA 102 of 2019 be reserved to the court hearing that appeal;

the Application in Appeal filed 2 March 2020 is dismissed.

Save that:

(a) The question of the admission of further evidence in Appeal NOA 54 of 2019 be reserved to the court hearing that appeal; and

(b) In Appeal NOA 54 of 2019, the applicant have leave to rely upon an Amended Notice of Appeal dated 8 March 2020;

the Application in an Appeal filed 10 March 2020 is dismissed.

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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