Marin & Salmon - [2012] FamCAFC 157

FAMILY COURT OF AUSTRALIA

MARIN & SALMON

[2012] FamCAFC 157

FAMILY LAW – APPEAL – PROCEDURE – Application for Regional Appeals Registrar to prepare appeal books – Where the orders the subject of the appeal appointed a litigation guardian for the appellant in both property and parenting proceedings in the Family Court – Where the appellant’s application was supported by the Independent Children’s Lawyer who was satisfied the appellant has no financial capacity to prepare the books herself – Where the appellant’s position is considered exceptional by reason of the severity of the orders appealed and her dire financial circumstances, and it would impose exceptional hardship to require her to prepare the appeal books – application allowed.

FAMILY LAW – APPEAL – PROCEDURE – Application for an extension of time – Where the appellant sought an extension of time or a stay of the appeal proceedings until such time as she has “medical clearance” to continue preparations or alternatively until she obtains Legal Aid funding – Where although there is evidence of the appellant’s significant physical ill health, no evidence supports an adjournment or postponement of the hearing of the appeal or the filing of her summary of argument – application otherwise dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004, rule 22.18

Clivery & Conway [2007] FamCA 1435

APPELLANT:

Ms Marin

RESPONDENT:

Mr Salmon

INDEPENDENT CHILDREN’S LAWYER:

Kendall Hawdon

FILE NUMBER:

BRF 3924 of 2003

APPEAL NUMBER:

NA 66 of 2011

DATE DELIVERED:

11 September 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

11 September 2012

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

15 July 2011

LOWER COURT MNC:

2011 FamCA 664

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person (by telephone)

SOLICITOR FOR THE ICL:

Forest Glen Lawyers (by telephone)

Orders

The Regional Appeals Registrar arrange for the preparation of the appeal books in appeal NA 66/2011.
The Appellant file and serve any additional disputed documents appeal book volumes together with the Summary of Argument and List of Authorities upon which she wishes to rely by 30 November 2012. Any disputed volume is to be tilted Disputed Documents Excluded by the Appeals Registrar from the Appeal Index and the Appellant must file four copies to the Court and deliver one copy to the Respondent and two copies to the Independent Children’s Lawyer by the date provided herein.
The Respondent and the Independent Children’s Lawyer file and serve the Summary of Argument and List of Authorities upon which they wish to rely by the dates provided by the order of Registrar Kane made 10 February 2012.
The Appellant have leave to file an affidavit with further supporting medical evidence in relation to her ability to comply with Order 2 of these orders no later than 23 November 2012.
The Appellant’s application in an appeal filed 8 August 2012 otherwise be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marin & Salmon

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 Marin & Salmon

Details

AGLC: MARIN & SALMON [2012] FamCAFC 157
Case: [2012] FamCAFC 157
Decision Date: 11 September 2012

CaseChat Overview and Summary

In the case of Marin & Salmon, the appellant sought relief from the Family Court of Australia regarding the preparation of appeal books and an extension of time due to her financial and health difficulties. The appeal stemmed from orders made by the Family Court, which appointed a litigation guardian for the appellant in both property and parenting proceedings. The appellant, supported by the Independent Children’s Lawyer, argued that she was financially unable to prepare the appeal books herself. Given the severity of the orders and her dire financial circumstances, the appellant contended that requiring her to prepare the appeal books would impose exceptional hardship. The court was required to determine whether the Regional Appeals Registrar should prepare the appeal books and if the appellant should be granted an extension of time until she obtained medical clearance or Legal Aid funding.

The court considered the appellant's financial situation, which was evidenced by her Disability Support Pension, Pension Supplement, and Rent Assistance, totaling approximately $840 per fortnight, with deductions for child support and other expenses. The appellant's medical condition, chronic back pain requiring ongoing therapy and specialist follow-up, further supported her exceptional hardship claim. The court noted that the appeal had some merit, and the appellant appeared to understand the issues and arguments involved. Regarding the application for an extension of time, the court found insufficient evidence to support an adjournment or postponement of the appeal proceedings. Consequently, the application for an extension of time was dismissed.

The court allowed the appellant's application for the Regional Appeals Registrar to prepare the appeal books due to the exceptional hardship caused by the appellant's severe financial and health circumstances. The court ordered the Registrar to prepare and file the appeal books, with the appellant potentially responsible for paying the costs. The court also set a deadline for the appellant to file additional disputed documents, the Summary of Argument, and the List of Authorities. The appellant was further granted leave to file an affidavit with further medical evidence regarding her ability to comply with the court's orders. The application for an extension of time was dismissed.

Orders

Orders of the court

The Regional Appeals Registrar arrange for the preparation of the appeal books in appeal NA 66/2011.

The Appellant file and serve any additional disputed documents appeal book volumes together with the Summary of Argument and List of Authorities upon which she wishes to rely by 30 November 2012. Any disputed volume is to be tilted Disputed Documents Excluded by the Appeals Registrar from the Appeal Index and the Appellant must file four copies to the Court and deliver one copy to the Respondent and two copies to the Independent Children’s Lawyer by the date provided herein.

The Respondent and the Independent Children’s Lawyer file and serve the Summary of Argument and List of Authorities upon which they wish to rely by the dates provided by the order of Registrar Kane made 10 February 2012.

The Appellant have leave to file an affidavit with further supporting medical evidence in relation to her ability to comply with Order 2 of these orders no later than 23 November 2012.

The Appellant’s application in an appeal filed 8 August 2012 otherwise be dismissed.

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

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Ratio Decidendi

Legal Principle Established

Rule 22.18 of the Rules governs the preparation of appeal books:Preparation of appeal books(1)The appellant or, if so ordered, the cross-appellant is responsible for preparing and filing the appeal books, including arranging to obtain any transcript required to be included in the appeal books.(2)If a Judge or Regional Appeal Registrar is satisfied that preparing the appeal books would impose exceptional hardship on the appellant, the Judge or Regional Appeal Registrar may order either of the following to prepare and file the appeal books(a) a respondent;(b) the Regional Appeal Registrar.(3)When making an order under subrule (2), the court may order the appellant to pay the costs of preparing the appeal books.Note If the Regional Appeal Registrar prepares the appeal books, the appellant or cross-appellant (if so ordered) is still responsible for obtaining the transcript (see rule 22.27).(emphasis added) The settled appeal index contains 62 documents (including 35 affidavits) plus exhibits, and 12 transcripts. The first instance file appears to contain each of the transcripts referred to in the index except for one, from 15 May 2006. The Regional Appeals Registrar estimates that it would realistically take one month to prepare the appeal books and sufficient copies. In support of her application, the appellant filed an affidavit with evidence relating to her financial circumstances and her health. At the hearing some updated documents reflecting the continued status of her financial circumstances as outlined in the affidavit were handed up and the bundle marked as Exhibit 1 in the appeal. According to an income statement issued from Centrelink on 28 August 2012, the appellant receives as Disability Support Pension in the amount of $695.30, a Pension Supplement of $60.20 and Rent Assistance of approximately $87.90 each per fortnight. The letter records that each benefit was granted from 14 April 2008. From this amount, $44 per fortnight is deducted in Child Support. The Centrelink records also demonstrate a number of “Advance” payments, which the appellant says are Centrelink loans she has taken out to cover legal and medical expenses. The appellant’s only asset is her interest in the former matrimonial home, which is currently occupied by the husband and has an estimated value of $135,000. Bank statements demonstrate that the appellant has less than $100 in bank accounts. It is apparent from a budget prepared by the appellant that her total estimated expenses (including medical expenses) exceed her total income by approximately $70 per fortnight. The medical evidence from Dr F (30 July 2012) demonstrates that the appellant has a chronic back condition which requires specialist follow up, ongoing investigations and intense therapy. It is apparent from the other medical documents in the affidavit that the appellant has been suffering from “chronic low back pain” since at least 2008. The issues raised by the appeal, and indeed the orders which the subject of the appeal, are serious in their nature. At the hearing today the appellant appeared to understand the issues and presented arguments about why the orders should not have been made. Without entering into a detailed consideration of the prospects of success of her appeal, there is some merit to the appeal.