FAMILY LAW - APPEAL – REFUSAL OF STAY – Where trial Judge refused to stay the operation of parenting orders pending the hearing of the appeal against those orders – Where appeal against discretionary judgment –Whether refusal to grant stay would render the appeal nugatory – Where trial Judge appropriately gave significant weight to 15 year old child’s firmly held views– Whether trial Judge erred in failing to consider refusal to stay certain orders would permit child to travel overseas – Error by trial Judge established – Where appropriate for Full Court to re-exercise the discretion –Where, in light of age of child, strength of views and absence of contact for several years, there was little utility in allowing appeal in part to prevent overseas travel – Where on re-exercise Full Court came to same result as trial Judge – Appeal against refusal of stay dismissed.
FAMILY LAW - APPLICATION IN A CASE – TRANSCRIPT – Where applicant / appellant father sought that the Court provide transcript at its own cost – Where case not ‘exceptional’ – Where best interests of child did not require provision of transcript – Application dismissed.
FAMILY LAW - APPLICATION IN A CASE – REGISTRAR TO PREPARE APPEAL BOOKS – Where applicant / appellant father sought that the Registrar be ordered to prepare the appeal books – Where no basis established to support the order sought – Application dismissed.
FAMILY LAW - COSTS – Where applicant / appellant father largely unsuccessful – Where Independent Children’s Lawyer sought a costs order against the applicant / appellant father – Where substantive appeal still pending – Costs reserved to the determination of the substantive appeal.
Mr Trahn appeared in Person with the assistance of an interpreter
ADVOCATE FOR THE RESPONDENT:
There was no appearance for or on behalf of Ms Long
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:
Mr Braine
SOLICITOR FOR THE INDEPENDENT CHILDREN’S…
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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AGLC
Trahn & Long (No. 2) [2008] FamCAFC 194
Case
[2008] FamCAFC 194
Decision Date
CaseChat Overview and Summary
In the case of Trahn & Long (No. 2), the appeal concerns the refusal of the trial judge to stay the operation of certain parenting orders pending the appeal against those orders. The appeal was brought by the father, who was largely unsuccessful in his various applications. The legal issues before the court were whether the refusal to grant a stay would render the appeal nugatory, whether the trial judge appropriately considered the child's views, and whether the trial judge erred in failing to consider the impact of the refusal to stay on the child's ability to travel overseas. The court also considered applications by the father for a transcript at the court's cost, for the Registrar to prepare the appeal books, and a costs order sought by the Independent Children’s Lawyer.
The Full Court found that the trial judge appropriately gave significant weight to the 15-year-old child's firmly held views and that there was little utility in allowing the appeal in part to prevent overseas travel. The Full Court re-exercised the discretion and came to the same result as the trial judge, concluding that the error by the trial judge did not alter the outcome. The court dismissed the father's applications for a transcript, for the Registrar to prepare the appeal books, and reserved the costs order to the determination of the substantive appeal.
The Full Court held that the refusal to grant a stay would not render the appeal nugatory and that the trial judge appropriately exercised their discretion. The Full Court emphasised the importance of considering the child's views, particularly in light of their age and the strength of those views. The court found that the father's applications for a transcript, for the Registrar to prepare the appeal books, and the costs order were not substantiated. The appeal against the refusal of the stay was dismissed, and the substantive appeal remains pending. The costs order was reserved for determination upon the outcome of the substantive appeal.