Mankiewicz & Anor & Swallow - [2014] FamCAFC 193

FAMILY COURT OF AUSTRALIA

MANKIEWICZ AND ANOR & SWALLOW AND ANOR

[2014] FamCAFC 193

FAMILY LAW – APPEAL – Application in an appeal for expedition – Where the application is made by great grandparents – Whether the age of the applicants warrants expedition – Where the age of the applicants does not warrant expedition.

FAMILY LAW – APPEAL – Where the appellants seek an order that the court supply the transcript –– Where the circumstances do not warrant a provision of transcript.

Family Law Act 1975 (Cth): ss 102, 118

FIRST APPELLANT:

Mr Mankiewicz

SECOND APPELLANT:

Mrs Mankiewicz

FIRST RESPONDENT:

Mr Swallow

SECOND RESPONDENT:

Ms Swallow

FILE NUMBER:

SYC

6256

2013

APPEAL NUMBER:

112

2014

DATE DELIVERED:

2 October 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

23 September 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

25 July 2014

LOWER COURT MNC:

[2014] FamCA 579

REPRESENTATION

THE APPELLANTS:

Mrs Mankiewicz on behalf of the First and Second Appellants

COUNSEL FOR THE RESPONDENT:

Mr Levy

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

Orders

The application filed on 11 September 2014 be dismissed.
The application filed on 17 September 2014 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mankiewicz & Swallow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 112 of 2014
File Number: SYC 6256 of 2013

Mr Mankiewicz

First Appellant

and

Mrs Mankiewicz

Second Appellant

and

Mr Swallow

First Respondent

and

Ms Swallow

Second Respondent

REASONS FOR JUDGMENT

The appellants are the great grandparents of four children currently aged 16, 14, 10 and seven years. They are the children of their granddaughter, Ms Swallow and her husband. Mr Bemert, their son, is the father of Ms Swallow. He lives with the appellants.
On 25 October 2013 the appellants applied for orders that their four great grandchildren spend time with them. On 25 July 2014 Watts J dismissed their application and further made orders pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) prohibiting either of them from bringing parenting proceedings in relation to the four children without first seeking leave from the Court.
On 21 August 2014 the appellants filed a notice of appeal against his Honour’s orders.
By an application in an appeal filed on 1 September 2014, the appellants sought expedition of the appeal. In an affidavit filed on 17 September 2014, the appellants also sought that the Court provide them with the transcript of the proceedings before Watts J for the purposes of preparing the appeal books.
Both applications were refused. I indicated that I would provide brief reasons. These are the reasons.
Some background to these proceedings is of assistance in understanding the disposition of the applications.
In his reasons of 25 July 2014, Watts J observed that…

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 Mankiewicz & Anor & Swallow

Details

AGLC: Mankiewicz & Anor & Swallow [2014] FamCAFC 193
Case: [2014] FamCAFC 193
Decision Date: 2 October 2014

CaseChat Overview and Summary

In the Family Court of Australia, Mankiewicz & Anor v Swallow presented an appeal concerning the application for expedition and the request for the court to supply the trial transcript. The applicants, Mankiewicz and another, sought to expedite their appeal, arguing that their advanced age warranted such a measure. Additionally, they requested that the court provide the trial transcript. The respondents opposed both applications, contending that the applicants' age did not justify expediting the appeal and that the circumstances did not warrant the provision of the transcript.

The legal issues before the court involved determining whether the applicants' age justified expediting the appeal process and whether the circumstances warranted the provision of the trial transcript. The court considered the principle of expedition in appeals and the circumstances under which a transcript should be supplied. It evaluated the applicants' age and the impact it had on the urgency of the appeal and assessed the necessity of the transcript in light of the applicants' ability to effectively pursue their appeal.

The court found that the applicants' age alone did not warrant the expedition of the appeal, as the age factor needed to be balanced with the overall urgency and merits of the case. The court also determined that the circumstances did not justify the provision of the trial transcript, as the applicants had not demonstrated a compelling need for it to effectively pursue their appeal. Consequently, the court dismissed both applications, concluding that the age of the applicants did not sufficiently warrant expediting the appeal, and the circumstances did not necessitate the provision of the trial transcript.

The court's final orders were that the application for expedition filed on 11 September 2014 and the application for the transcript filed on 17 September 2014 were dismissed. This decision underscored the need for a balanced approach when considering applications for expedition and the provision of trial transcripts, taking into account the specific circumstances and the broader context of the case.

Orders

Orders of the court

The application filed on 11 September 2014 be dismissed.

The application filed on 17 September 2014 be dismissed.

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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