Nicolosi & Faron - [2024] FedCFamC1A 122

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Nicolosi & Faron [2024] FedCFamC1A 122

Appeal from: Faron & Nicolosi [2024] FCWA 60

Appeal number: NAA 109 of 2024

File number: 937 of 2017

Judgment of: AUSTIN J

Date of judgment: 22 July 2024

Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of transcript – Where the appellant seeks an order that the Court procure the trial transcript (“transcript”) at its expense – Where the appellant has acquired some days of the transcript at his expense – Where there are no exceptional circumstances to justify the Court funding the provision of the remaining days of the transcript – Where the appellant is relieved of the obligation to file and serve the entire transcript – Orders made – Application otherwise dismissed.

Legislation:
Family Law Act 1975 (Cth) Pts VII, VIII

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.19, 13.22

Cases cited: Peake & Cousins(No 2) [2019] FamCAFC 95

Number of paragraphs: 21

Date of hearing: 22 July 2024

Place: Newcastle (via Microsoft Teams)

Counsel for the Appellant: Litigant in person

Counsel for the Respondent: Litigant in person
ORDERS

NAA 109 of 2024
937 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR NICOLOSI

Appellant

AND:
MS FARON

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

22 JULY 2024

THE COURT ORDERS THAT:
1.The appeal is re-instated.
2.The appellant is relieved of the obligation to file and serve the electronic transcript of the trial, other than that which he already possesses for 7 and 8 November 2023, and:
(a)Orders 3, 5 and 6 made on 21 June 2024 are varied by amending the references to electronic transcript to mean only the transcript he already possesses; and
(b)Order 7 made on 21 June 2024 is discharged.

3.The time for the appellant’s compliance with Orders 3 (as amended), 5 (as amended), 8 and 10 made on 21 June 2024 is extended until 4.00 pm on Wednesday 31 July 2024.
4.The Application in an Appeal filed on 18 July 2024 is otherwise dismissed.
5.The time for the respondent’s compliance with Order 11 made on 21 June 2024 is extended until 4.00 pm on Wednesday 21 August 2024.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nicolosi & Faron has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

These reasons explain the dismissal of…

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: [2024] FedCFamC1A 122
Decision Date: 22 July 2024

CaseChat Overview and Summary

Nicolosi & Faron involved an appeal from a Family Court decision concerning the parties' children and property. The Family Court of Western Australia delivered judgment on 5 April 2024, and the appellant subsequently filed a Notice of Appeal on 3 May 2024. The appeal was set for hearing on 28 August 2024. The appellant sought an order that the Court procure the trial transcript at its expense, having already acquired some days of the transcript himself. The legal issue before the court was whether there were exceptional circumstances to justify the Court funding the provision of the remaining days of the transcript.

The court considered the established criteria for such an order, including whether the case was financial or child-related, whether the entire transcript was integral to the appeal, the appellant's ability to defray part of the transcript cost, the proportional cost of the transcript relative to the anticipated cost of the appeal, the prima facie merit of the appeal, and whether the Full Court should make the decision about the transcript. Given that the appellant had already procured some days of the transcript, and there were no exceptional circumstances present, the court found that it was not appropriate to order the Court to fund the remaining days of the transcript.

The appeal was reinstated as the abandonment was of short duration. The appellant was relieved of the obligation to file and serve the entire transcript, but only in relation to the days he had already procured. The court varied the relevant procedural orders and extended the time for compliance with certain orders. The application for the Court to procure the transcript was dismissed.

The final orders included the reinstatement of the appeal, the variation of specific procedural orders to reflect the appellant's possession of part of the transcript, the extension of time for the appellant's compliance with certain orders, and the dismissal of the application for the Court to procure the transcript. The time for the respondent’s compliance with a procedural order was also extended.

Orders

Orders of the court

NAA 109 of 2024

937 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR NICOLOSI

Appellant

AND:

MS FARON

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

22 JULY 2024

THE COURT ORDERS THAT:

1. The appeal is re-instated.

2. The appellant is relieved of the obligation to file and serve the electronic transcript of the trial, other than that which he already possesses for 7 and 8 November 2023, and:

(a) Orders 3, 5 and 6 made on 21 June 2024 are varied by amending the references to electronic transcript to mean only the transcript he already possesses; and

(b) Order 7 made on 21 June 2024 is discharged.

3. The time for the appellant’s compliance with Orders 3 (as amended), 5 (as amended), 8 and 10 made on 21 June 2024 is extended until 4.00 pm on Wednesday 31 July 2024.

4. The Application in an Appeal filed on 18 July 2024 is otherwise dismissed.

5. The time for the respondent’s compliance with Order 11 made on 21 June 2024 is extended until 4.00 pm on Wednesday 21 August 2024.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Background

Background to the litigation

These reasons explain the dismissal of the appellant’s application for the Court to pay for and procure transcript of the trial in readiness for the appeal hearing, fixed for 28 August 2024.Background On 5 April 2024, a judge of the Family Court of Western Australia delivered judgment to determine the causes of action between the parties in respect of their children and their property under Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) respectively. The appellant appealed from all those orders by Notice of Appeal filed on 3 May 2024. On 21 June 2024, the appeal registrar made procedural orders in the appeal which relevantly required the appellant to file and serve by Friday 19 July 2024 the appeal book, the electronic transcript of the trial, his Summary of Argument and his List of Authorities. The appeal registrar advised the appellant by email on 24 June 2024 that he would need to act with haste and the transcript could be obtained from the provider on about seven days’ notice. On 1 July 2024, the appellant filed an application seeking an extension until 19 September 2024 within which to file the appeal book, which he later informed the appeal registrar was an application also intended to extend the time within which to file the transcript. The appellant told the appeal registrar he knew the grant of the application would inevitably delay the appeal hearing. The application was heard and dismissed by the appeal registrar on 4 July 2024. The parties were then notified the appeal was set down for hearing before the Full Court on 28 August 2024. Then, on 18 July 2024 – one day before the time expired to file the appeal documents – the appellant filed another application seeking an order that the Court procure and pay for the trial transcript, relieving him of that burden imposed by r 13.19(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). The application did not include any application for an extension of time within which to file and serve either the appeal book or his Summary of Argument and List of Authorities. The appellant failed to file the appeal book by 19 July 2024 and so, by operation of r 13.22 of the Rules, the appeal was then deemed abandoned. Nonetheless, the appellant’s application remained listed for hearing on 22 July 2024.Disposition The appeal is re-instated as that outcome causes no material prejudice to the respondent after the deemed abandonment of less than three days duration. The following observations in Peake & Cousins(No 2) [2019] FamCAFC 95 are apposite to the appellant’s application to shift the burden of procuring the transcript to the Court:17.Despite some past reservations about this Court’s power to order the provision of transcript for a party (WJD & TEK (1998) 72 ALJR 1323; Forbes & Bream (2008) 222 FLR 96 at [30]–[34]), the Court has proceeded on the basis that it will do so in exceptional cases (Forbes & Bream at [35]–[36]). The considerations which will influence whether such an order might be made in the exercise of discretion have been identified and include (see Sampson &Hartnett (Provision of [2010] FamCAFC 220 Transcript) (2013) FLC 93-542 at [16]):(a) Whether the case is financial or child-related;(b)Whether the whole or only part of the transcript is integral to the appeal;(c)Whether the appellant can defray any part of the transcript cost;(d)The proportional cost of the transcript to the anticipated cost of the appeal;(e)The prima facie merit of the appeal; and(f)Whether the Full Court hearing the appeal should make the decision about transcript.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 109 of 2024 937 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR NICOLOSI Appellant
AND:	MS FARON Respondent

Appeal from:	Faron & Nicolosi [2024] FCWA 60
Appeal number:	NAA 109 of 2024
File number:	937 of 2017
Judgment of:	AUSTIN J
Date of judgment:	22 July 2024
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of transcript – Where the appellant seeks an order that the Court procure the trial transcript (“transcript”) at its expense – Where the appellant has acquired some days of the transcript at his expense – Where there are no exceptional circumstances to justify the Court funding the provision of the remaining days of the transcript – Where the appellant is relieved of the obligation to file and serve the entire transcript – Orders made – Application otherwise dismissed.
Legislation:	Family Law Act 1975 (Cth) Pts VII, VIII Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.19, 13.22
Cases cited:	Peake & Cousins(No 2) [2019] FamCAFC 95
Number of paragraphs:	21
Date of hearing:	22 July 2024
Place:	Newcastle (via Microsoft Teams)
Counsel for the Appellant:	Litigant in person
Counsel for the Respondent:	Litigant in person

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	22 JULY 2024