Raske and Butler and Ors (No. 2)
[2013] FamCAFC 101
FAMILY COURT OF AUSTRALIA
| RASKE & BUTLER AND ORS (NO. 2) | [2013] FamCAFC 101 |
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for adjournment – Application for court to provide transcript – Applications dismissed.
| Family Law Act 1975 (Cth) Andrews v Andrews (Re: Subpoena) (2007) 37 Fam LR 358 |
| APPELLANT: | Mr Raske |
| FIRST RESPONDENT: | Ms Butler |
| SECOND RESPONDENT: | Fordes Pty Ltd |
| THIRD RESPONDENT: | Juniper Pty Ltd |
| FOURTH RESPONDENT: | Fordes Investments Pty Ltd |
| FILE NUMBER: | MLC 11769 of 2010 |
| APPEAL NUMBER: | SOA 3 of 2012 |
| DATE DELIVERED: | 21 June 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | May, Thackray and Murphy JJ |
| HEARING DATE: | 21 June 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 June 2013 |
| LOWER COURT MNC: | [2011] FMCAfam 1529 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hone |
| THE RESPONDENTS: | No appearance |
Orders
The Application in an Appeal filed 6 July 2012 is dismissed.
The oral application for an adjournment made on behalf of appellant is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Raske & Butler and Ors (No. 2) has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 3 of 2012
File Number: MLC 11769 of 2010
| Mr Raske |
Appellant
And
| Ms Butler |
First Respondent
| Fordes Pty Ltd |
Second Respondent
| Juniper Pty Ltd |
Third Respondent
| Fordes Investments Pty Ltd |
Fourth Respondent
EX TEMPORE REASONS FOR JUDGMENT
May J
The appeal was filed by Mr Raske on 10 January 2012.
At the outset of this matter, an application was made for an adjournment of the appeal and also that this Court provide the transcript of the hearing before Federal Magistrate O’Dwyer. It seems that the question of the adjournment and the provision of the transcript are almost one and the same. I intend to give short reasons in relation to those applications, and ultimately, when reasons are given in relation to the appeal itself, no doubt more will be said.
First, in relation to the transcript. On very few occasions orders are made in this Court for the provision of transcript. There is no reference to such provision in the Family Law Act 1975 (Cth) or the Family Law Rules 2004 (Cth). The Rules specifically place the obligation on an appellant to provide the transcript, as was discussed in Andrews v Andrews (Re: Subpoena) (2007) 37 Fam LR 358.
There are a number of reasons the Court does not provide transcripts, not the least of them the considerable expense. It is understood that many litigants are unable to afford the transcript themselves, and we are entirely mindful of that. However, nothing was said to us this morning by Mr Hone of counsel that would convince me that in this case, being an appeal against property orders, this Court should provide the transcript and thereby also adjourn the hearing of the appeal.
Secondly, in relation to the application generally for an adjournment, it was said by Mr Hone that the principal purpose would be so that he could appear on the appeal and argue it for the appellant.
Mr Hone did explain that there were a number of limitations to his future appearance, the main one being that his solicitor would need to be placed in funds so that he could appear. It seems, at least to me, being aware of the orders made by the Federal Magistrate, the history of the matter and in particular having read the reasons, that it is unlikely that the appellant might immediately have such funds to place with his solicitors. In fact, that much was almost conceded by Mr Hone. The only possibility of such funds, it seems, is that they might come from some unstated third party.
While of course it is best for appellants to be represented in matters such as this, which I would concede is complicated, there are many occasions when litigants must appear for themselves and often do so quite adequately. There is no other feature of this appeal that was mentioned to us by Mr Hone, or about Mr Raske, that would cause me to think that Mr Raske would be in any special position of having difficulty appearing for himself. In my view, the application for provision of the transcript should be refused and the application for the adjournment should be refused.
Thackray J
I agree with the reasons given by the Presiding Judge and would make the same orders as she proposes dismissing both applications. I would only add this notice of appeal was filed on 10 January 2012 being some 18 months ago. The entire day has been set aside for the Full Court to hear this matter and the resources of this Court are very limited, so for those additional reasons too, I would dismiss both applications.
Murphy J
I also agree with the orders proposed by the Presiding Judge. I agree with her Honour’s reasons. I also agree with the additional reasons outlined by
Thackray J.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 21 June 2013.
Associate:
Date: 28 June 2013
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