Melville and Melville - [2020] FamCAFC 52

FAMILY COURT OF AUSTRALIA

MELVILLE & MELVILLE

[2020] FamCAFC 52

FAMILY LAW – APPLICATION IN AN APPEAL – TRANSCRIPT – Where the father seeks an order that he need not provide the entirety of the transcript for his appeal – Where the father was informed he could be permitted to listen to the audio of the hearing to identify the extracts of transcript he would require – Where such order was made with the consent of all parties.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Melville

RESPONDENT:

Ms Melville

INDEPENDENT CHILDREN’S LAWYER:

Dooley Solicitors

FILE NUMBER:

BRC

4044

2017

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

10 March 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

10 March 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

10 October 2019 (Property); 10 October 2019 (Parenting)

LOWER COURT MNC:

[2019] FCCA 3417 (Property); [2019] FCCA 3323 (Parenting)

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Ms Galvin, Robbins Watson Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Dooley, Dooley Solicitors

Orders

IT IS ORDERED BY CONSENT:

The Appeals Registrar facilitate as soon as reasonably practicable the father listening to the audio of the hearing on 9 October 2019, with a view to isolating or extracting from the transcript the necessary part in support of paragraph 7 of his Summary of Argument filed on 11 February 2019, to be filed as soon as possible.
Otherwise the requirement for the father to obtain transcript for the hearing on 9 October 2019 be dispensed with.
The father’s Application in an Appeal relating to transcript be otherwise dismissed.

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 Melville & Melville 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
BRISBANE

Appeal Number: NOA 98 of 2019
File Number: BRC 4044 of 2017

Mr Melville

Applicant

And

Ms Melville

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

This is the Application in an Appeal of the father in relation to the transcript of the evidence before the trial judge at the trial of these proceedings on 8 and 9 October 2019.
The hearing before the trial judge took place over several days; 27 and 28 February, 1 March, and then 8, 9 and 10 October 2019 respectively.
Transcript of that hearing is available for the appeal for those dates stated, save and except for 8 and 9 October 2019.
On the hearing…

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

Case: [2020] FamCAFC 52
Decision Date: 10 March 2020

CaseChat Overview and Summary

The case involves a dispute between the parents of a child, identified as Melville and Melville, which was heard in the Family Court of Australia. The primary issue in this case was the father’s application for an appeal regarding a transcript of an earlier hearing held on 9 October 2019. The father sought to obtain a transcript to support his Summary of Argument filed on 11 February 2019. The court was required to decide whether the father should be required to obtain the transcript or if it could be provided to him directly by the court, and if the appeal relating to the transcript should proceed.

The court considered the father’s need for the transcript and the practicality of providing it directly. It was noted that the father intended to use the transcript to isolate specific parts to support his argument. The court acknowledged the father's position and the potential inconvenience of obtaining the transcript himself. In light of this, the court ordered that the Appeals Registrar facilitate the father listening to the audio of the hearing on 9 October 2019, aiming to isolate the necessary part from the transcript. This order aimed to address the father's need without requiring him to obtain the full transcript. The court also dismissed the father’s broader application in the appeal concerning the transcript, concluding that the specific need could be met through the facilitated access to the audio recording.

Orders

Orders of the court

IT IS ORDERED BY CONSENT:

The Appeals Registrar facilitate as soon as reasonably practicable the father listening to the audio of the hearing on 9 October 2019, with a view to isolating or extracting from the transcript the necessary part in support of paragraph 7 of his Summary of Argument filed on 11 February 2019, to be filed as soon as possible.

Otherwise the requirement for the father to obtain transcript for the hearing on 9 October 2019 be dispensed with.

The father’s Application in an Appeal relating to transcript be otherwise 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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