Oram and Lambert & Ors - [2018] FamCAFC 130

FAMILY COURT OF AUSTRALIA

ORAM & LAMBERT AND ORS

[2018] FamCAFC 130

FAMILY LAW – APPLICATION IN AN APPEAL – RESTRAINT OF SOLICITORS FROM ACTING – Preliminary view that the application is not of a procedural nature for the purposes of s 94AAA(10) of the Family Law Act 1975 (Cth) – Where in the absence of a s 94AAA(3) direction the application needs to be heard by a bench of three judges of the Full Court or made in the Federal Circuit Court – Application adjourned.

FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the applicant seeks the expedition of her appeal from final parenting orders – Where the application is opposed by the first respondent’s solicitors and therefore cannot be heard until the application for restraint is dealt with – Application adjourned.

FAMILY LAW – APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Consideration of factors identified in Sampson & Hartnett (2013) FLC 93-542 at [16] – Where the Court only provides transcript at its own expense to parties in exceptional circumstances – Application dismissed.

Family Law Act 1975 (Cth) s 94AAA(10)

Finch & Shibo (No 2) [2016] FamCAFC 108
Sampson & Hartnett (2013) FLC 93-542; [2010] FamCAFC 220

APPLICANT:

Ms Oram

FIRST RESPONDENT:

Mr Lambert

SECOND RESPONDENT:

Ms McCready

INDEPENDENT CHILDREN’S LAWYER:

Emalene Gemmell Solicitor

FILE NUMBER:

NCC

2354

2016

APPEAL NUMBER:

2018

DATE DELIVERED:

13 July 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

13 July 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

18 April 2018

LOWER COURT MNC:

[2018] FCCA 1214

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE FIRST

RESPONDENT:

Mr Moin solicitor

SOLICITOR FOR THE FIRST RESPONDENT:

Moin & Associates

THE SECOND RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Gemmell solicitor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Emalene Gemmell Solicitor

Orders

The Application in an Appeal filed on 3 July 2018 seeking provision of the transcript is dismissed.
The Applications in an Appeal filed on 3 July 2018 seeking expedition of the appeal and the restraint of the solicitor acting for the First Respondent are stood over to a date and time to be fixed.

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 Oram & Lambert and Ors 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 SYDNEY

Appeal Number: EA 67 of 2018
File Number: NCC 2354 of 2016

Ms Oram

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 Oram and Lambert & Ors

Details

AGLC: Oram and Lambert & Ors [2018] FamCAFC 130
Case: [2018] FamCAFC 130
Decision Date: 13 July 2018

CaseChat Overview and Summary

In the case of Oram and Lambert & Ors, the parties were involved in a dispute related to family law matters. The applicant, Oram, filed an application in an appeal regarding the restraint of solicitors acting for the respondents, as well as seeking expedition of her appeal from final parenting orders. The matter was heard in the Family Court of Australia. The primary legal issues the court needed to decide were whether the application for restraint of solicitors was of a procedural nature under section 94AAA(10) of the Family Law Act 1975 (Cth), whether the application needed to be heard by a bench of three judges of the Full Court or made in the Federal Circuit Court, and whether the court should provide a transcript at its own expense to the parties in exceptional circumstances.

The court initially considered the application for restraint of solicitors, determining that it was not of a procedural nature, thus requiring a direction under section 94AAA(3) to be heard by a bench of three judges of the Full Court or made in the Federal Circuit Court. Consequently, the application for restraint was adjourned. The court also addressed the application for expedition of the appeal, which was opposed by the first respondent’s solicitors, and hence could not be heard until the application for restraint was resolved. This application was also adjourned. Lastly, the court examined the application for provision of a transcript, considering the factors outlined in Sampson & Hartnett (2013) FLC 93-542 at [16], and concluded that the circumstances did not warrant the court providing the transcript at its own expense. Therefore, this application was dismissed.

The final orders of the court were that the application for provision of the transcript, filed on 3 July 2018, was dismissed. The applications for expedition of the appeal and the restraint of the solicitor acting for the first respondent, also filed on 3 July 2018, were stood over to a date and time to be fixed. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The Application in an Appeal filed on 3 July 2018 seeking provision of the transcript is dismissed.

The Applications in an Appeal filed on 3 July 2018 seeking expedition of the appeal and the restraint of the solicitor acting for the First Respondent are stood over to a date and time to be fixed.

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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