Oakley & Cooper - [2008] FamCAFC 129

FAMILY COURT OF AUSTRALIA

OAKLEY & COOPER

[2008] FamCAFC 129

FAMILY LAW – APPEAL – APPLICATION IN A CASE – Application that the court provide transcript of trial and prepare appeal books – Where the Appellant is self represented and on a disability support pension – Appeal books to be prepared by the Independent Children’s Lawyer (Legal Aid Queensland)

FAMILY LAW - COSTS – Reserved to the appeal

Family Law Act 1975 (Cth)

Andrews v Andrews (Re: Subpoena) (2007) 37 Fam LR 358
Fortnum & Fortnum (No.2) [2008] FamCAFC 73

APPELLANT:

MR OAKLEY

RESPONDENT:

MS COOPER

INDEPENDENT CHILDREN’S LAWYER:

LEGAL AID (QLD)

FILE NUMBER:

BRM

5744

2006

APPEAL NUMBER:

2008

DATE DELIVERED:

25 August 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Thackray & Benjamin JJ

HEARING DATE:

4 August 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

21 December 2007

LOWER COURT MNC:

[2007] FMCAfam 1137

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Appellant appeared in person

SOLICITOR FOR THE RESPONDENT:

Respondent appeared in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Buckland

Orders

That the application filed by the appellant on 19 June 2008 be dismissed.
That the appeal books be prepared by the Independent Children’s Lawyer and filed in the Northern Region Appeal Registry.
That should the appellant not provide the transcript of the hearing before the Federal Magistrate to the Independent Children’s Lawyer on or before 29 September 2008, the appeal books (without transcript) be filed by 13 October 2008 by the Independent Children’s Lawyer and delivered to the parties.
That the costs of and incidental to this application be reserved as costs in the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Oakley & Cooper is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 13 of 2008
File Number: BRM 5744 of 2006

MR OAKLEY

Appellant

And

MS COOPER

Respondent

REASONS FOR JUDGMENT

The appellant filed an application on 19 June 2008 asking: -
1.That the court provide transcript of trial that was held before Federal Magistrate Baumann on 13 September 2007;
2. That the Appeal Registrar do the books for the appeal.
In support of that application the appellant filed an affidavit explaining:
I don’t have much money, I receive a disability support pension. I pay $150.00pf rent I also pay $33.60pf bus fares to take boys to school and home. I pay $65.00pf loan repayments and $150.00pf for food.
The appellant is self represented and explained that he would have difficulty preparing appeal books and we assume the filing of appeal books.
Ms Buckland appeared for the Independent Children’s Lawyer. We were told by her that Legal Aid (Qld) would prepare the appeal books but would not pay for the transcript. The reason the transcript could not be provided we were told was a matter of policy of Legal Aid (Qld). The only question…

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 Oakley & Cooper

Details

AGLC: Oakley & Cooper [2008] FamCAFC 129
Case: [2008] FamCAFC 129
Decision Date: 25 August 2008

CaseChat Overview and Summary

Oakley and Cooper is a case where the appellant, self-represented and receiving a disability support pension, sought a transcript of the trial and the preparation of appeal books. The appeal was lodged in a family law context and dealt with an application for costs. The appellant, who was representing herself, made an application to the court for a transcript of the trial proceedings and the preparation of appeal books. Additionally, she sought the costs of the application to be reserved for the appeal stage. The appellant also requested that the Independent Children’s Lawyer (Legal Aid Queensland) be responsible for preparing the appeal books.

The legal issues before the court were whether the appeal books should be prepared by the Independent Children’s Lawyer and if the costs of the application should be reserved for the appeal stage. The court had to consider the appellant's self-representation and her financial circumstances, given that she was on a disability support pension, while also ensuring that the process of preparing the appeal was conducted efficiently and fairly.

The court dismissed the application for the provision of the trial transcript and the preparation of appeal books, ruling that the Independent Children’s Lawyer would prepare the appeal books instead. The court reasoned that reserving the costs of the application to the appeal stage would be appropriate, given the appellant's financial situation and the need to ensure a fair and efficient appeal process. The court also set a deadline for the appellant to provide the trial transcript to the Independent Children’s Lawyer, failing which the appeal books would be filed without the transcript.

The final orders of the court mandated that the application filed by the appellant be dismissed. The Independent Children’s Lawyer was tasked with preparing and filing the appeal books, with a specific deadline if the appellant failed to provide the trial transcript. Additionally, the costs of and incidental to this application were reserved as costs in the appeal, ensuring that the financial burden would be considered during the appeal process.

Orders

Orders of the court

That the application filed by the appellant on 19 June 2008 be dismissed.

That the appeal books be prepared by the Independent Children’s Lawyer and filed in the Northern Region Appeal Registry.

That should the appellant not provide the transcript of the hearing before the Federal Magistrate to the Independent Children’s Lawyer on or before 29 September 2008, the appeal books (without transcript) be filed by 13 October 2008 by the Independent Children’s Lawyer and delivered to the parties.

That the costs of and incidental to this application be reserved as costs in the appeal.

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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