NEMELIA & KENTA - [2016] FamCAFC 225

FAMILY COURT OF AUSTRALIA

NEMELIA & KENTA

[2016] FamCAFC 225

FAMILY LAW – APPEAL – CHILDREN – Where the mother asserted that she did not consent to share the costs of travel – Where the mother asserted that she could not afford to share the cost of travel and the child should undergo his orthodontic treatment in the Gold Cost rather than Sydney – Where the mother was unable to demonstrate that the trial judge was in error in finding that the mother consented to orders to share the cost of travel – Where the trial judge was clearly aware of the mother’s income position – Where the trial judge’s findings about the mother’s capacity to share the costs of travel were open to her Honour on the evidence – Where it was open to her Honour to order that the child undergo orthodontic treatment in Sydney.

FAMILY LAW – APPLICATION IN AN APPEAL – TRANSCRIPT – Where the mother sought that the requirement to file all of the transcript of the first instance hearing be dispensed with – Where the mother understood the forensic difficulty for the court where the transcript was unavailable – Where there was no objection by the father – Requirement for transcript dispensed with – Where the mother sought that the court obtain the transcript of the first instance hearing – Where the mother did not establish that this is an exceptional case where the court should provide transcript – Application dismissed – Where the mother sought to exclude the 96 pages of annexures contained within the affidavit of the father from the appeal books – Where there was no objection by the father.

FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – Where the further evidence was relied upon by the mother to dispute the evidence accepted by the trial judge – Where the evidence would not demonstrate that the orders under appeal are erroneous – Application dismissed.

Evidence Act 1995 (Cth) s 69
Family Law Act 1975 (Cth) s 93A(2)

Cappetto & Cappetto [2013] FamCAFC 69

CDJ v VAJ (1998) 197 CLR 172

APPELLANT:

Ms Nemelia

RESPONDENT:

Mr Kenta

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

5874

2011

APPEAL NUMBER:

138

2015

DATE DELIVERED:

9 November 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Aldridge and Cronin JJ

HEARING DATE:

16 September 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

21 July 2015

LOWER COURT MNC:

[2015] FamCA 568

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

THE INDEPENDENT CHILDREN’S LAWYER:

No appearance

Orders

The appeal be 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 Nemelia & Kenta 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…

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: NEMELIA & KENTA [2016] FamCAFC 225
Case: [2016] FamCAFC 225
Decision Date: 9 November 2016

CaseChat Overview and Summary

Nemelia & Kenta was an appeal concerning the costs of travel for a child to undergo orthodontic treatment and certain procedural issues arising in the appeal. The mother appealed orders made by the Family Court of Australia regarding the costs of travel for the child to undergo orthodontic treatment in Sydney, as well as certain procedural matters in the appeal process. The mother argued that she did not consent to share the costs of travel and that she could not afford to do so, asserting that the treatment should be undertaken in the Gold Coast rather than Sydney. Additionally, she sought to exclude certain documents from the appeal and to adduce further evidence to dispute the evidence accepted by the trial judge.

The court was required to decide whether the trial judge was correct in finding that the mother consented to share the costs of travel, whether the trial judge was clearly aware of the mother’s income position, and whether the trial judge's findings about the mother’s capacity to share the costs of travel were open to her Honour on the evidence. The court also had to determine if the requirement to file all of the transcript of the first instance hearing should be dispensed with, whether the court should obtain the transcript of the first instance hearing, and whether the mother could adduce further evidence to dispute the evidence accepted by the trial judge.

The court found that the mother was unable to demonstrate that the trial judge was in error in finding that she consented to orders to share the cost of travel. The trial judge was clearly aware of the mother’s income position and her Honour's findings about the mother’s capacity to share the costs of travel were open to her on the evidence. Consequently, it was open to her Honour to order that the child undergo orthodontic treatment in Sydney. Regarding the procedural issues, the court found that the mother understood the forensic difficulty for the court where the transcript was unavailable, and there was no objection by the father. Therefore, the requirement for the transcript was dispensed with. The court also dismissed the mother's application to obtain the transcript of the first instance hearing and to exclude certain documents from the appeal books. Furthermore, the court dismissed the application to adduce further evidence as it would not demonstrate that the orders under appeal are erroneous.

The court dismissed the appeal and ordered that the appeal be dismissed.

Orders

Orders of the court

The appeal be 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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