Warnett and Amerson - [2020] FamCAFC 24

FAMILY COURT OF AUSTRALIA

WARNETT & AMERSON

[2020] FamCAFC 24

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of the transcript – Where the father seeks an order that the Court provide the transcript of the proceedings before the primary judge at its own expense – Where the circumstances are not such that the interests of justice require the Court to provide the transcript – Where parts of the transcript are held by the Court and will be forwarded to the parties – Where the father does not have the means to purchase the rest of the transcript – Where the procedural orders for the preparation of the appeal will be amended so that the father will be permitted to provide such portions of the transcript as he can obtain – Application dismissed.

Sampson & Hartnett (2013) FLC 93-542; [2010] FamCAFC 220
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

APPLICANT:

Mr Warnett

RESPONDENT:

Ms Amerson

INDEPENDENT CHILDREN’S LAWYER:

Lukes Law

FILE NUMBER:

WOC

427

2017

APPEAL NUMBER:

116

2019

DATE DELIVERED:

7 February 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

30 January 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

27 September 2019

LOWER COURT MNC:

[2019] FamCA 499

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cohen with Ms Murphy

THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

Rossi Simicic Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Lukes Law

Orders

The parties be provided with the parts of the transcript held by the Court, namely, the transcript of the proceedings before the primary judge on 22 March 2019 and 28 May 2019.
The Application in an Appeal filed on 5 December 2019 be otherwise dismissed.
Order 1.27 of the procedural orders made on 12 December 2019 be amended so as to include the words “or such portions of the transcript as the appellant can obtain” after the words “and 28 May 2019”.
The appellant file and serve an Amended Notice of Appeal within seven days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Warnett & Amerson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
SYDNEY

Appeal Number: EA 116 of 2019
File Number: WOC 427 of 2017

Mr Warnett

Applicant

And

Ms Amerson

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Mr Warnett (“the father”) has appealed against final parenting orders made on 27 September 2019 by a judge…

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 Warnett and Amerson

Details

AGLC: Warnett and Amerson [2020] FamCAFC 24
Case: [2020] FamCAFC 24
Decision Date: 7 February 2020

CaseChat Overview and Summary

Warnett and Amerson involved a dispute between two parties, Warnett and Amerson, which was brought before a court in Australia. The specific nature of their dispute was not detailed in the provided text, but it was related to an appeal against a decision made in the primary court. The appeal was heard in the Federal Circuit and Family Court of Australia, indicating that the matter had significant legal implications and was of a high importance to warrant an appeal.

The legal issues that the court had to decide in this case revolved around the procedural aspects of the appeal. These included the provision of parts of the transcript held by the Court, specifically the proceedings before the primary judge on 22 March 2019 and 28 May 2019, and the dismissal of an Application in an Appeal filed on 5 December 2019. Additionally, the court needed to amend Order 1.27 of the procedural orders made on 12 December 2019 to include specific wording that would allow the appellant to obtain certain portions of the transcript. The court also required the appellant to file and serve an Amended Notice of Appeal within a specified time frame.

The court's reasoning and outcome were focused on ensuring that the procedural aspects of the appeal were handled correctly. By providing the necessary transcripts and amending the procedural order, the court aimed to facilitate a fair and transparent appeal process. The dismissal of the Application in an Appeal was a direct result of the court finding that the application did not meet the required standards or did not provide sufficient grounds for the appeal to proceed. The requirement for the appellant to file and serve an Amended Notice of Appeal within seven days was a procedural step to ensure that the appeal process continued in an orderly manner.

Orders

Orders of the court

The parties be provided with the parts of the transcript held by the Court, namely, the transcript of the proceedings before the primary judge on 22 March 2019 and 28 May 2019.

The Application in an Appeal filed on 5 December 2019 be otherwise dismissed.

Order 1.27 of the procedural orders made on 12 December 2019 be amended so as to include the words “or such portions of the transcript as the appellant can obtain” after the words “and 28 May 2019”.

The appellant file and serve an Amended Notice of Appeal within seven days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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