PAPENDORF & PAPENDORF - [2018] FamCAFC 114

FAMILY COURT OF AUSTRALIA

PAPENDORF & PAPENDORF

[2018] FamCAFC 114

FAMILY LAW – APPLICATION IN AN APPEAL – DISPENSE WITH TRANSCRIPTS – DISMISSAL – where the appellant mother failed to file the complete trial transcripts in accordance with orders made of an Appeals Registrar – where the mother sought to proceed with the appeal in the absence of the complete transcripts or, alternatively, for the Court to allow her further time to raise funds to obtain them – where the respondent father sought that the mother’s appeal be dismissed pursuant to r 22.45 of the Family Law Rules 2004 (Cth) for non-compliance – where it would not be a legitimate exercise of discretion to adjourn the hearing of the appeal – where the application to proceed without complete transcripts was allowed on the basis that the mother be prevented from advancing any ground of appeal or argument where reference to the trial transcript would be necessary in order for the Court to determine or consider the ground or argument – application to dismiss the appeal pursuant to r 22.45 dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – where the mother sought to adduce further evidence on appeal – where the further evidence was not capable of demonstrating error and did not meet any established criteria for the admission of further evidence – application dismissed.

FAMILY LAW – APPEAL – PARENTING – where the mother appealed from orders which fundamentally changed the child’s living arrangements – where many of the mother’s stated grounds of appeal were not proper grounds of appeal – where many of the mother’s challenges were as to weight – where challenges to weight given by a trial judge to evidence can only succeed if an appellate court is satisfied the trial judge was plainly wrong – where nothing to which the mother referred on the hearing of the appeal provided any substance to her grounds of appeal – appeal dismissed – no order as to costs of the appeal.

Family Law Act 1975 (Cth) ss 60CC, 68L, 93A, 97(3), 117(2A)
Family Law Rules 2004 (Cth) r 22.45

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Lenova & Lenova (Costs) [2011] FamCAFC 141
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Simmons and Anor & Kingley (2014) FLC 93-581; [2014] FamCAFC 47

APPELLANT:

Ms Papendorf

RESPONDENT:

Mr Papendorf

INDEPENDENT CHILDREN’S LAWYER:

Marlene Ebejer, Ebejer & Associates Lawyers

FILE NUMBER:

MLC

5616

2010

APPEAL NUMBER:

SOA

2018

DATE DELIVERED:

22 June 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Ainslie-Wallace, Aldridge & Kent JJ

HEARING DATE:

22 June 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

19 December 2017

LOWER COURT MNC:

[2017] FCCA 2990

REPRESENTATION

THE…

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: PAPENDORF & PAPENDORF [2018] FamCAFC 114
Case: [2018] FamCAFC 114
Decision Date: 22 June 2018

CaseChat Overview and Summary

In the matter of Papendorf & Papendorf, the mother appealed against orders made by Judge McGuire on 19 December 2017, which significantly altered the child’s living arrangements. The father sought the dismissal of the appeal under rule 22.45 of the Family Law Rules 2004 (Cth), arguing that the mother had failed to comply with orders to file complete trial transcripts. The mother, in turn, sought permission to proceed with the appeal without the complete transcripts or an extension to raise funds to obtain them. Additionally, she sought to adduce further evidence on appeal.

The legal issues before the court included whether it was appropriate to allow the mother to proceed with the appeal in the absence of complete trial transcripts and whether the mother’s appeal grounds were valid. The court considered whether the mother's challenges to the trial judge's assessment of evidence weight met the criteria for success, particularly given that challenges to weight can only succeed if the appellate court is satisfied that the trial judge was plainly wrong. The mother’s application to adduce further evidence was also assessed against established criteria for admitting new evidence on appeal.

The court determined that it was not a legitimate exercise of discretion to adjourn the hearing of the appeal. It allowed the mother to proceed with the appeal without complete trial transcripts, but restricted her from advancing any grounds of appeal or arguments that required reference to the trial transcript. The court also dismissed the mother’s application to adduce further evidence, finding it did not demonstrate error or meet the criteria for admission. Ultimately, the court dismissed the mother’s appeal, noting that many of her grounds were not proper grounds of appeal, and found no substance in her challenges to the trial judge’s assessment of evidence weight.

The orders of the court included granting the mother leave to rely on her Amended Notice of Appeal and Summary of Argument, dismissing the father's application to dismiss the appeal, allowing the mother’s application to proceed without all trial transcripts, and dismissing her application to adduce further evidence. The appeal was dismissed, and no order was made as to the costs of the appeal.

Orders

Orders of the court

The mother is granted leave to rely on an Amended Notice of Appeal filed 22 May 2018.

The mother is granted leave to rely on her Summary of Argument filed 23 May 2018.

The father’s application to dismiss the appeal pursuant to r 22.45 is dismissed.

The mother’s application to proceed with the appeal absent all of the trial transcripts is allowed.

The mother’s application to adduce further evidence on appeal is dismissed.

The mother’s appeal from the orders made by Judge McGuire on 19 December 2017 is dismissed.

There be no order as to costs of the appeal.

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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