Trahn & Long (No. 2)

Case [2008] FamCAFC 194


FAMILY COURT OF AUSTRALIA

TRAHN & LONG (NO. 2) [2008] FamCAFC 194

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.

Family Law Act 1975 (Cth) – s 118
Family Law Rules 2004 (Cth) – r 22.24
Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685
Clemett and Clemett (1981) FLC 91-013
Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220
Forbes & Bream [2008] FamCAFC 189
House v The King (1936) 55 CLR 499
Jennings Constructions Limited  v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
JRN & KEN & IEG & BLG (1998) 72 ALJR 1329
APPELLANT: Mr Trahn
RESPONDENT: Ms Long
INDEPENDENT CHILDREN’S LAWYER: S P Nasti
FILE NUMBER: PAF 2203 of 1994
FIRST APPEAL NUMBER: EA 106 of 2008
SECOND APPEAL NUMBER: EA 125 of 2008
DATE DELIVERED: 11 December 2008
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Warnick, Boland & Dessau JJ
HEARING DATE: 4 December 2008
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE:

13 August 2008

21 October 2008

LOWER COURT MNC: [2008] FamCA 730
[2008] FamCA 922

REPRESENTATION

ADVOCATE FOR THE APPELLANT: 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…

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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.

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Background

Background to the litigation

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