LONCAR & LONCAR - [2020] FamCAFC 273

FAMILY COURT OF AUSTRALIA

LONCAR & LONCAR

[2020] FamCAFC 273

FAMILY LAW – APPLICATION IN AN APPEAL – Dispense with transcript – Where leave is granted for the appeal to be heard without the requirement to include the transcripts of the trial proceedings in the appeal book.

APPLICANT:

Ms Loncar

RESPONDENT:

Mr Loncar

FILE NUMBER:

EAA

127

2020

APPEAL NUMBER:

SYC

3269

2016

DATE DELIVERED:

4 November 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

4 November 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

4 August 2020

LOWER COURT MNC:

[2020] FCCA 2094

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jackson

SOLICITOR FOR THE APPLICANT:

Maclarens Lawyers

THE RESPONDENT:

Self-represented

Orders

That the appellant be permitted to proceed with her appeal without having included in the appeal book the transcript of proceedings dated 9, 10, 11 and 20 March 2020.
That the costs of the application will be costs in the appeal.

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 Loncar & Loncar 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: SYC 3269 of 2016
File Number: EAA 127 of 2020

Ms Loncar

Appellant

And

Mr Loncar

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

By an Application in an Appeal filed on 26 October 2020, Ms Loncar (“the applicant”) seeks an order that her appeal be heard and determined without the trial transcript. The trial occurred over four days on 9, 10, 11 and 20 March 2020.
The applicant’s appeal is against final property orders made on 4 August 2020 in the Federal Circuit Court of Australia, in proceedings between her and Mr Loncar (“the respondent”).
Essentially, the applicant appeals against orders that require her to pay the respondent the sum of $346,493.05 (Order 1(a)), cause the discharge of the mortgage at Property A (Order 1(b)), and transfer her interest in the B Timeshare to the respondent (Order 1(c)); as well as orders for the respondent to transfer to the applicant his right, title and interest in Property A upon the applicant’s compliance with Order 1 (Order 2) or; if the applicant fails to comply with Order 1, for Property A be sold (Order 3). The applicant also seeks to appeal a superannuation splitting order allocating $61,140.50 in her favour (Order 7).
The applicant deposes that she would not seek to rely upon the transcript in support of her grounds of appeal. Her appeal…

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 LONCAR & LONCAR

Details

AGLC: LONCAR & LONCAR [2020] FamCAFC 273
Case: [2020] FamCAFC 273
Decision Date: 4 November 2020

CaseChat Overview and Summary

The case of LONCAR & LONCAR involved an appeal by the appellant, who was seeking to dispense with the requirement of including the trial transcripts in the appeal book. The appeal was before the Family Court of Australia, where the appellant contested the decision of a primary judge regarding a family law matter. The primary judge had ruled on various issues pertaining to the division of property and spousal maintenance between the parties.

The legal issues in the appeal centred around whether the appellant should be permitted to proceed with the appeal without the need to include the transcripts of the trial proceedings. The court had to consider whether there were sufficient grounds to dispense with the requirement of including the transcripts, and whether such a decision would affect the fairness and effectiveness of the appeal process. The appellant argued that the transcripts were unnecessary because the appeal was based on points of law rather than facts, and that the inclusion of the transcripts would be unduly burdensome and costly.

In reaching its decision, the court examined the circumstances under which it may grant leave to dispense with the requirement of including trial transcripts in the appeal book. The court noted that the primary judge's decision was based on well-established principles and that the appeal was not likely to benefit from the inclusion of the transcripts. The court also took into account the appellant's argument that the appeal was focused on points of law and that the transcripts were not essential for resolving those issues. Consequently, the court found that there were sufficient grounds to grant the appellant's application to proceed without the trial transcripts. The court further ordered that the costs of the application would be costs in the appeal.

Orders

Orders of the court

That the appellant be permitted to proceed with her appeal without having included in the appeal book the transcript of proceedings dated 9, 10, 11 and 20 March 2020.

That the costs of the application will be costs in the appeal.

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

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.