FAMILY COURT OF AUSTRALIA
Newett & Newett (No. 2) [2021] FamCAFC 98
Appeal from: Newett & Newett [2021] FamCA 82 Appeal number(s): NOA 11 of 2021 File number(s): BRC 2179 of 2018 Judgment of: TREE J Date of judgment: 24 June 2021 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Where the appellant mother seeks for this Court to purchase transcript for the purpose of her appeal – Where the transcript is not necessary for the determination of the appeal – No exceptional circumstance to justify the Court funding the provision of transcript – Where the requirement for the mother to obtain transcript be dispensed with – No order as to costs. Legislation: Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) rr 1.12, 22.18
Cases cited: Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189
Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220
Division: Appeal Division Number of paragraphs: 21 Date of hearing: 22 June 2021 Place: Cairns The Appellant: Self-represented Solicitor for the First Respondent: Damien Greer Lawyers The Second Respondent: Self-represented (no appearance) Solicitor for the Independent Children’s Lawyer: Norman & Kingston Solicitors ORDERS
NOA 11 of 2021
BRC 2179 of 2018APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS NEWETT
Appellant
AND: MR NEWETT
First Respondent
MS ADLAM
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
TREE J
DATE OF ORDER:
24 JUNE 2021
THE COURT ORDERS THAT:
1.Insofar as the orders of a Registrar made 17 May 2021 require the appellant mother to obtain and file transcript of the proceedings before the primary judge on 11 and 25 February 2021, they be discharged.
2.The requirement of r 22.18 of the Family Law Rules 2004 (Cth) be dispensed with in this appeal.
3.Otherwise the appellant mother’s Application in an Appeal filed 16 June 2021 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Newett & Newett (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
On 25 February 2021, a judge of the Family Court of Australia dismissed an application by Ms Newett (“the mother”) that he recuse himself from further dealing with extant parenting and property proceedings between the mother, Mr Newett (“the father”), Ms Adlam (“the maternal grandmother”) and an Independent Children's Lawyer. By Notice of Appeal filed 12 March 2021 the mother has appealed from that order.
In the course of preparing that appeal for hearing, on 17 May 2021 a Registrar made orders…
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- Case
- [2021] FamCAFC 98
- Decision Date
CaseChat Overview and Summary
The legal issue before the court was whether the transcript was necessary for the determination of the appeal and whether there were any exceptional circumstances that would justify the court funding the provision of the transcript. The court noted that it was not funded to pay for transcripts for appellants, and there was no express provision in the Family Law Act 1975 (Cth) or the Family Law Rules 2004 (Cth) that permitted it. The court acknowledged that it had a discretion to provide a transcript if the interests of justice required it, but this would usually only be in exceptional circumstances.
The court found that the determinative issue was whether any part of the transcript of 11 February or 25 February 2021 was necessary for the appeal. The court concluded that the transcript was not necessary for the determination of the appeal, and there were no exceptional circumstances that would justify the court funding the provision of the transcript. The court also noted that the mother had not addressed the factors listed in Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542, such as the proportionality of the cost of the transcript to the appellant’s anticipated costs in relation to the whole appeal, including the preparation of the appeal book(s), and the prima facie merits of the appeal. Therefore, the court discharged the orders of a Registrar made 17 May 2021 that required the appellant mother to obtain and file transcript of the proceedings before the primary judge on 11 and 25 February 2021 and dispensed with the requirement of r 22.18 of the Family Law Rules 2004 (Cth) in this appeal. The mother’s Application in an Appeal filed 16 June 2021 was dismissed.
Orders
Orders of the court
NOA 11 of 2021
BRC 2179 of 2018
APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:
MS NEWETT
Appellant
AND:
MR NEWETT
First Respondent
MS ADLAM
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
TREE J
DATE OF ORDER:
24 JUNE 2021
THE COURT ORDERS THAT:
1. Insofar as the orders of a Registrar made 17 May 2021 require the appellant mother to obtain and file transcript of the proceedings before the primary judge on 11 and 25 February 2021, they be discharged.
2. The requirement of r 22.18 of the Family Law Rules 2004 (Cth) be dispensed with in this appeal.
3. Otherwise the appellant mother’s Application in an Appeal filed 16 June 2021 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
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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