Theophane and Hunt & Anor - [2015] FamCAFC 203

FAMILY COURT OF AUSTRALIA

THEOPHANE & HUNT AND ANOR

[2015] FamCAFC 203

FAMILY LAW – APPEAL – PROCEDURE – Application for review of Regional Appeal Registrar’s order filed by the mother – Review conducted on basis of a hearing de novo – Where the Application was filed out of time – Where the delay was adequately explained – Where there is no prejudice to the father to hear the review application.

FAMILY LAW – APPEAL – PROCEDURE – Where the father has filed a Notice of Appeal against parenting orders of Tree J – Where the Regional Appeal Registrar made procedural orders, requiring the appellant father to prepare the appeal books – Where the father filed an Application for either the court or the mother pay for the transcripts – Where the Regional Appeal Registrar adjourned the issue of the transcript to be heard by the Full Court together with the substantive appeal – Where the mother challenges this decision as she is unable to properly prepare for the appeal – Where the father’s grounds of appeal require reference to the transcript –Where father says he cannot afford the transcript and has no intention of providing it – Where the father assures this Court he is able to argue his grounds by reference to the reasons and other documents – Where the requirement for transcripts is dispensed with – Application for review is allowed in part.

Family Law Act 1975 (Cth) s 102QB
Family Law Rules 20014 (Cth) r 18.10, 22.18, 22.40

Forbes & Bream [2008] FamCAFC 189
Gallo v Dawson (1990) 93 ALR 479
Jarrah & Fadel (No 2) [2014] FamCAFC 175
Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542
Xuarez & O’Halloran & Anor [2013] FamCAFC 13

APPLICANT:

Ms Hunt

RESPONDENT:

Mr Theophane

INDEPENDENT CHILDREN’S LAWYER:	Susan Gray
FILE NUMBER:	CSC	1089	of	2007

APPEAL NUMBER:

2014

DATE DELIVERED:

23 October 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

21 October 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

15 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms McMillan QC

SOLICITOR FOR THE APPLICANT:	O’Reilly Stevens Lawyers
RESPONDENT:	In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms McArdle
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Susan Gray

Orders

The Application in an Appeal filed by the mother on 8 October 2015 for an extension of time to review the Appeal Registrar’s orders of 15 May 2015 is allowed.
The Application for a review of those orders is allowed in part.
Order 2 of the Appeal Registrar’s orders of 15 May 2015 be set aside.
The father is at liberty to file and serve an Application seeking to adduce further evidence together with an affidavit of evidence attaching previous applications within fourteen (14) days of these orders.
The mother and the Independent Children’s Lawyer are permitted to file a response to the father’s further affidavit within seven (7) days after the father has filed and served…

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 Theophane and Hunt & Anor

Details

AGLC: Theophane and Hunt & Anor [2015] FamCAFC 203
Case: [2015] FamCAFC 203
Decision Date: 23 October 2015

CaseChat Overview and Summary

Theophane and Hunt & Anor involved a dispute regarding procedural orders in a family law appeal. The mother filed an application for review of the Regional Appeal Registrar’s orders, which had required the father to prepare the appeal books and provide transcripts. The father had appealed parenting orders made by Tree J, and the mother argued that the Registrar’s decision regarding the transcripts would prejudice her ability to prepare for the appeal. The father, however, stated he could not afford the transcripts and had no intention of providing them, but assured he could argue his grounds by reference to other documents. The court had to determine whether the Regional Appeal Registrar’s decision was correct and if the mother’s application for review should be allowed.

The court examined whether the Regional Appeal Registrar correctly exercised their discretion under Rule 22.18 of the Family Law Rules 2004 (Cth) in requiring the father to prepare the appeal books and obtain transcripts. The court also considered if the Registrar’s decision to adjourn the issue of the transcripts until the substantive appeal would unduly prejudice the mother. Additionally, the court needed to decide if the father's inability to afford transcripts should result in the requirement being dispensed with.

The court found that while the father had not demonstrated exceptional hardship as required by Rule 22.18(2), the circumstances did not warrant the imposition of the full requirement on him. The court allowed the mother’s application for review in part, setting aside the order that required the father to provide transcripts. The father was permitted to file an application to adduce further evidence within a specified timeframe, and the mother and the Independent Children's Lawyer were allowed to respond. The costs of the application were reserved for determination by the Full Court.

ORDERS:
1. The Application in an Appeal filed by the mother on 8 October 2015 for an extension of time to review the Appeal Registrar’s orders of 15 May 2015 is allowed.
2. The Application for a review of those orders is allowed in part.
3. Order 2 of the Appeal Registrar’s orders of 15 May 2015 be set aside.
4. The father is at liberty to file and serve an Application seeking to adduce further evidence together with an affidavit of evidence attaching previous applications within fourteen (14) days of these orders.
5. The mother and the Independent Children’s Lawyer are permitted to file a response to the father’s further affidavit within seven (7) days after the father has filed and served such application and affidavit.
6. The costs of this Application be reserved to the Full Court of the Family Court of Australia.

Orders

Orders of the court

The Application in an Appeal filed by the mother on 8 October 2015 for an extension of time to review the Appeal Registrar’s orders of 15 May 2015 is allowed.

The Application for a review of those orders is allowed in part.

Order 2 of the Appeal Registrar’s orders of 15 May 2015 be set aside.

The father is at liberty to file and serve an Application seeking to adduce further evidence together with an affidavit of evidence attaching previous applications within fourteen (14) days of these orders.

The mother and the Independent Children’s Lawyer are permitted to file a response to the father’s further affidavit within seven (7) days after the father has filed and served such application and affidavit.

The costs of this Application be reserved to the Full Court of the Family Court of Australia.

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

Rule 22.18 provides: Preparation of appeal books(1)The appellant or, if so ordered, the cross-appellant is responsible for preparing and filing the appeal books, including arranging to obtain any transcript required to be included in the appeal books.(2)If a Judge or Regional Appeal Registrar is satisfied that preparing the appeal books would impose exceptional hardship on the appellant, the Judge or Regional Appeal Registrar may order either of the following to prepare and file the appeal books:(a)a respondent;(b)the Regional Appeal Registrar.Note:If the Regional Appeal Registrar prepares the appeal books, the appellant or cross-appellant (if so ordered) is still responsible for obtaining the transcript (see rule 22.27).… The father submitted the following reasons as demonstrating the “exceptional hardship” which would be caused if required to prepare the appeal books: 14.…a)He is financially unable to afford to prepare appeal booksb)He has written on a number of the documents required for the appeal books and would therefore need to obtain ‘clean’ copies of the documents from the Court at a cost per photocopy. c)That it is in the interests of justice that his appeal be heard, which I take to be a submission that the grounds of appeal contained in the Notice of Appeal have merit. The Appeals Registrar considered the father’s evidence of his financial position (at [15] – [18]), which was contested by the mother and the ICL (at [19] – [20]). The Appeals Registrar concluded that on the limited nature of the hearing, it was difficult to form a concluded view but it was appropriate to at least resolve the father was of limited means (at [22]). The Appeals Registrar noted the father had been previously granted an extension of time in which to prepare the appeal books (at [24]). The Appeals Registrar considered my earlier decision in Xuarez & O’Halloran & Anor [2013] FamCAFC 13, and specifically [33] – [38] and [50] of those reasons. In support of his “exceptional hardship” claim, the father also explained that he did not have “clean” copies of the material in which to copy for the appeal books, however the Appeals Registrar noted he had made no attempts to request copies of the court file (at [27]). The father submitted that he was unable to afford such requests (at [28]). The Appeals Registrar concluded that father did not demonstrate that exceptional hardship would be imposed by preparing the appeal books, as the circumstances of his financial means were not exceptional (at [36]). The father has not sought to review this decision. With considerable assistance from the Registry, the appeal books have been prepared and filed, save for the transcripts. The father filed his summary of argument on 21 September 2015. The Appeals Registrar ordered that the issue of the provision of transcripts be adjourned to be heard by the Full Court, together with the substantive appeal (at [4]). No reasons were provided in relation to this decision. However, it should be noted that this decision is commonly made, as experience demonstrates that transcripts are often not required, or only a small proportion of the transcript is required. To demand that a litigant in person provide a transcript of many days of a hearing can be onerous and delay the hearing of an appeal. The decision in relation to transcripts very much depends on the content of the grounds of appeal and the matters ultimately argued. It can also be difficult in the early stages after the filing of an appeal, to predict how those grounds will be argued, especially by a litigant in person.