Smits & Jansen - [2025] FedCFamC1A 164

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Smits & Jansen [2025] FedCFamC1A 164

Appeal from: Smits & Jansen [2025] FedCFamC1F 352

Appeal number: NAA 295 of 2025

File number: HBC 340 of 2024

Judgment of: AUSTIN J

Date of judgment: 10 September 2025

Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Review of decision – Where the appeal registrar dismissed the appellant’s application for the court to procure the trial transcript at its expense – Where in default of the transcript being filed, the final appeal hearing will proceed without it – Where the cost of the transcript seems disproportionate to its utility – Application dismissed.

Legislation:
Family Law Act 1975 (Cth) Pt VII

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189

Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220

Number of paragraphs: 30

Date of hearing: 10 September 2025

Place: Newcastle (via Microsoft Teams)

The Appellant: Litigant in person

The Respondent: Litigant in person (did not participate)

The Independent Children's Lawyer: Did not participate
ORDERS

NAA 295 of 2025
HBC 340 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR SMITS

Appellant

AND:
MS JANSEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

10 SEPTEMBER 2025

THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 26 August 2025 is dismissed.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Smits & Jansen 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 the appellant’s review application within this appeal.
Background
The pending appeal is listed for hearing before the Full Court on 28 October 2025.
The appeal is brought from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 29 May 2025 dismissing the parties’ respective applications to vary parenting orders in relation to their only child.
Parenting orders were made between the parties on two prior occasions in May 2018 and February 2022 to finalise causes of action between them under Pt VII of the Family Law Act

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 Smits & Jansen

Details

AGLC: Smits & Jansen [2025] FedCFamC1A 164
Case: [2025] FedCFamC1A 164
Decision Date: 10 September 2025

CaseChat Overview and Summary

This decision addresses the dismissal of an application in an appeal by Mr Smits against the decision of the appeal registrar not to provide the transcript of the trial at the Court’s expense. The appeal stems from a decision made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 29 May 2025, which dismissed the parties' respective applications to vary parenting orders concerning their child. The appeal is scheduled for hearing before the Full Court on 28 October 2025. The trial of the fresh dispute took place over five days between March and May 2025, and judgment was delivered on 29 May 2025. The appeal registrar had ordered Mr Smits to procure and file the trial transcript, but later revised this order to permit Mr Smits to prosecute the appeal without the transcript, following his application for the Court to provide it at its expense.

The legal issues before the court were whether the appeal registrar's decision to decline Mr Smits' application to have the trial transcript provided by the Court at its expense should be reviewed and, if so, whether it should be quashed. The court considered whether the appeal registrar's decision was legally flawed, taking into account the relevant legal principles. The court noted that it is only funded to decide litigation, not to fund the litigation, and that only in exceptional cases will an appellant be relieved of the usual burden of providing the trial transcript for an appeal. The court also considered the considerations relevant to determining whether an exceptional order might be made, including the financial or child-related nature of the case, the integrality of the transcript to the appeal, the appellant's ability to defray any part of the transcript cost, the proportional cost of the transcript to the anticipated cost of the appeal, and the prima facie merit of the appeal. The court concluded that the appeal registrar's decision was not legally flawed and dismissed the application in an appeal.

The court dismissed the application in an appeal filed on 26 August 2025. The court found that the appeal registrar's decision to decline Mr Smits' application to have the trial transcript provided by the Court at its expense was not legally flawed. The court noted that the case was financial in nature, that only part of the transcript was integral to the appeal, that Mr Smits could defray some part of the transcript cost, that the proportional cost of the transcript to the anticipated cost of the appeal was high, and that the appeal did not appear to have strong prima facie merit. The court also noted that the appeal registrar had already provided some measure of relief to Mr Smits by permitting him to prosecute the appeal without the transcript. The court held that the appeal registrar's decision was within the bounds of the exercise of discretion and that it should not be reviewed. The court dismissed the application in an appeal and made no orders.

Orders

Orders of the court

NAA 295 of 2025

HBC 340 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR SMITS

Appellant

AND:

MS JANSEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

10 SEPTEMBER 2025

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 26 August 2025 is dismissed.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

These reasons explain the dismissal of the appellant’s review application within this appeal.Background The pending appeal is listed for hearing before the Full Court on 28 October 2025. The appeal is brought from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 29 May 2025 dismissing the parties’ respective applications to vary parenting orders in relation to their only child. Parenting orders were made between the parties on two prior occasions in May 2018 and February 2022 to finalise causes of action between them under Pt VII of the Family Law Act 1975 (Cth) (“the Act”). Proceedings were commenced by the appellant for a third time in April 2024, to which the respondent joined issue by filing a Response in July 2024. The trial of the fresh dispute proceeded before the primary judge over five days between March and May 2025. Judgment was reserved for a few weeks and pronounced on 29 May 2025. His Honour dismissed the parties’ respective applications (Orders 1 and 2), confirmed the last orders made in February 2022 would remain in full force and effect (Order 3), and discharged the Independent Children’s Lawyer (Order 4). Following the appellant’s appeal from those orders, the appeal registrar made procedural orders to ensure the readiness of the appeal for hearing in October 2025. Initially, the appeal registrar ordered the appellant to procure and file the transcript of the trial (Orders 3–5 made on 28 July 2025), consistently with the provisions of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Those orders were later revised in response to an application filed by the appellant seeking that the Court obtain the trial transcript for him at the Court’s expense. The appeal registrar declined the application but did give the appellant some measure of relief by dispensing with his obligation to obtain the transcript, permitting him to prosecute the appeal without it (Orders 1–5 made on 6 August 2025). The appellant was dissatisfied with that decision and reviewed it by filing an Application in an Appeal on 26 August 2025. He still wants the Court to procure the whole trial transcript at its expense. In support of his application, the appellant relies upon his affidavit filed on 21 July 2025 (in support of the original application) and his affidavit filed on 26 August 2025 (in support of the review application – his “second affidavit”).Legal principles The Court is only funded to decide litigation, not to fund the litigation. Only in exceptional cases will an appellant be relieved of the usual burden of providing the trial transcript for an appeal and instead have the transcript provided by the Court at its own expense for the appellant’s benefit (Forbes & Bream (2008) 222 FLR 96 at [35]–[36]). The considerations which will influence whether such an exceptional order might be made in the exercise of discretion include these (Sampson & Hartnett (Provision of 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; and(e)the prima facie merit of the appeal.Disposition

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 295 of 2025 HBC 340 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR SMITS Appellant
AND:	MS JANSEN Respondent
INDEPENDENT CHILDREN'S LAWYER

Appeal from:	Smits & Jansen [2025] FedCFamC1F 352
Appeal number:	NAA 295 of 2025
File number:	HBC 340 of 2024
Judgment of:	AUSTIN J
Date of judgment:	10 September 2025
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Review of decision – Where the appeal registrar dismissed the appellant’s application for the court to procure the trial transcript at its expense – Where in default of the transcript being filed, the final appeal hearing will proceed without it – Where the cost of the transcript seems disproportionate to its utility – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) Pt VII Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited:	Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189 Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220
Number of paragraphs:	30
Date of hearing:	10 September 2025
Place:	Newcastle (via Microsoft Teams)
The Appellant:	Litigant in person
The Respondent:	Litigant in person (did not participate)
The Independent Children's Lawyer:	Did not participate

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	10 SEPTEMBER 2025