Swan & Swan - [2024] FedCFamC1A 19

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Swan & Swan [2024] FedCFamC1A 19

Appeal from: Swan & Swan (No 2) [2023] FedCFamC1F 1086

Appeal number: NAA 344 of 2023

File number: MLC 6388 of 2020

Judgment of: RIETHMULLER J

Date of judgment: 23 February 2024

Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Request for Court to provide transcript for 3 days of the trial – Relevance of transcript to grounds of appeal not explained – No prima facie merit apparent on grounds of appeal – Appellant’s current solicitor wishing to review transcript in search of other possible grounds of appeal – No evidence of the likely costs of the transcript – Application dismissed.

Cases cited:
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

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

Fortnum & Fortnum (No 2) [2008] FamCAFC 73

House v The King (1936) 55 CLR 499; [1936] 55 NSWLR 499

Sampson & Hartnett (2013) FLC 93-54; [2010] FamCAFC 220

Number of paragraphs: 17

Date of hearing: 23 February 2024

Place: Parramatta

Solicitor for the Applicant: Swan Hill Legal Co.

Counsel for the Respondent: Mr Dean

Solicitor for the Respondent: Heinz Law

Solicitor for the Independent Children's Lawyer: Inclusive Family Law & Mediation
ORDERS

NAA 344 of 2023
MLC 6388 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS SWAN

Appellant

AND:
MR SWAN

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

23 FEBRUARY 2024

THE COURT ORDERS THAT:
1.The Application in an Appeal filed 14 February 2024 be 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Swan & Swan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J

This is an Application in an Appeal where the appellant mother appeals against orders changing the residence of the children to the respondent father following a trial.
On 6 February 2024, after hearing the solicitors for the parties, an Appeal Judicial Registrar made directions for the proper preparation of the appeal, including an Order that the appellant “email the digital transcript of the hearing before the primary Judge (for the dates 8-10 November 2023 ie 3 days) for filing to the appeal…

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 Swan & Swan

Details

AGLC: Swan & Swan [2024] FedCFamC1A 19
Case: [2024] FedCFamC1A 19
Decision Date: 23 February 2024

CaseChat Overview and Summary

Ms Swan sought an order from the Family Court of Australia for the court to provide a transcript of three days of the trial for use in an appeal against a family law judgment. Mr Swan opposed the application. The Court was required to decide whether the application should be granted, having regard to the provisions of the Family Law Rules 2021 (Cth) and the relevant law. The Court held that the applicant had failed to demonstrate that there was a prima facie merit to the grounds of appeal as the grounds had not been clearly identified and the relevance of the transcript to the grounds had not been explained. Additionally, the application did not provide any evidence of the likely costs of the transcript. The Court held that the application should be dismissed.

The Court held that the application was not in the interests of justice as there was no explanation of the relevance of the transcript to the grounds of appeal and there was no evidence of the likely costs of the transcript. The Court held that the applicant's current solicitor wished to review the transcript to identify other possible grounds of appeal, but this did not meet the threshold for an order for a transcript under the Family Law Rules 2021 (Cth). The Court held that the application should be dismissed.

Orders

Orders of the court

NAA 344 of 2023

MLC 6388 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS SWAN

Appellant

AND:

MR SWAN

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

23 FEBRUARY 2024

THE COURT ORDERS THAT:

1. The Application in an Appeal filed 14 February 2024 be 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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

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 344 of 2023 MLC 6388 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS SWAN Appellant
AND:	MR SWAN Respondent
INDEPENDENT CHILDREN’S LAWYER

Appeal from:	Swan & Swan (No 2) [2023] FedCFamC1F 1086
Appeal number:	NAA 344 of 2023
File number:	MLC 6388 of 2020
Judgment of:	RIETHMULLER J
Date of judgment:	23 February 2024
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Request for Court to provide transcript for 3 days of the trial – Relevance of transcript to grounds of appeal not explained – No prima facie merit apparent on grounds of appeal – Appellant’s current solicitor wishing to review transcript in search of other possible grounds of appeal – No evidence of the likely costs of the transcript – Application dismissed.
Cases cited:	CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189 Fortnum & Fortnum (No 2) [2008] FamCAFC 73 House v The King (1936) 55 CLR 499; [1936] 55 NSWLR 499 Sampson & Hartnett (2013) FLC 93-54; [2010] FamCAFC 220
Number of paragraphs:	17
Date of hearing:	23 February 2024
Place:	Parramatta
Solicitor for the Applicant:	Swan Hill Legal Co.
Counsel for the Respondent:	Mr Dean
Solicitor for the Respondent:	Heinz Law
Solicitor for the Independent Children's Lawyer:	Inclusive Family Law & Mediation

ORDER MADE BY:	RIETHMULLER J
DATE OF ORDER:	23 FEBRUARY 2024