Whiteoaks & Marton - [2022] FedCFamC1A 33

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Whiteoaks & Marton [2022] FedCFamC1A 33

Appeal from: Whiteoaks & Marton [2021] FedCFamC2F 471

Appeal number(s): NAA 104 of 2021

File number(s): MLC 3501 of 2018

Judgment of: AUSTIN J

Date of judgment: 7 March 2022

Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Provision of transcript – Where the appellant seeks either provision of transcript by the Court or relief from the obligation to obtain it – Where the appellant is impecunious – Where the apparent weakness of the appellant’s grounds of appeal militates against any finding that the interests of justice demand the Court should bear the expense of procuring the transcript – Where the appellant’s application succeeds in part – Where the appellant is relieved of the obligation to obtain the transcript – Orders made – Application otherwise dismissed.

Legislation:
Family Law Act 1975 (Cth) Pt VII, s 102NA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.19, 12.22

Cases cited: Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220

Number of paragraphs: 14

Date of hearing: 7 March 2022

Place: Newcastle (via video link)

The Appellant: Litigant in person

The Respondent: Litigant in person
ORDERS

NAA 104 of 2021
MLC 3501 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR WHITEOAKS

Appellant

AND:
MS MARTON

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

7 MARCH 2022

THE COURT ORDERS THAT:
1.Orders 2, 3 and 4 made by the Appeal Registrar on 8 February 2022 are discharged.
2.The requirement for the appellant to file transcript in the appeal is dispensed with.
3.Otherwise, the Application in an Appeal filed on 23 February 2022 is 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Whiteoaks & Marton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

This is an appeal from parenting orders made under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) on 30 November 2021 by a judge of the Federal Circuit and Family Court of Australia (Division 2).
The orders granted the respondent mother sole parental responsibility for the child and enabled the mother to move with the child from City B to live in another region of Victoria, which move the appellant father had opposed. Other orders made provision for the child to spend time with the father on alternate weekends…

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 Whiteoaks & Marton

Details

AGLC: Whiteoaks & Marton [2022] FedCFamC1A 33
Case: [2022] FedCFamC1A 33
Decision Date: 7 March 2022

CaseChat Overview and Summary

Mr Whiteoaks appealed against decisions made in the Federal Circuit and Family Court of Australia concerning his relationship with Ms Marton. The appeal was brought before the Family Court’s appellate division, with Mr Whiteoaks acting as the appellant and Ms Marton as the respondent. Mr Whiteoaks sought relief from the obligation to obtain a transcript of the proceedings in the first instance court, or alternatively, that the court provide the transcript. The appellant was impecunious and the quality of his grounds of appeal were insufficient to support the conclusion that the interests of justice required the court to bear the expense of procuring the transcript. The court was required to determine whether the appellant’s financial circumstances justified the court in relieving him of the obligation to obtain the transcript or whether the interests of justice required the court to dispense with the requirement for the appellant to file a transcript in the appeal.

The court considered the appellant’s financial circumstances and the quality of his grounds of appeal. The court held that the appellant’s financial circumstances justified the court in relieving him of the obligation to obtain the transcript. However, the apparent weakness of the appellant’s grounds of appeal militated against any finding that the interests of justice demanded the Court should bear the expense of procuring the transcript. The court held that the appellant was relieved of the obligation to obtain the transcript, but the application was otherwise dismissed.

The court discharged orders 2, 3 and 4 made by the Appeal Registrar on 8 February 2022. The court dispensed with the requirement for the appellant to file transcript in the appeal and dismissed the application in an appeal filed on 23 February 2022.

Orders

Orders of the court

NAA 104 of 2021

MLC 3501 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR WHITEOAKS

Appellant

AND:

MS MARTON

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

7 MARCH 2022

THE COURT ORDERS THAT:

1. Orders 2, 3 and 4 made by the Appeal Registrar on 8 February 2022 are discharged.

2. The requirement for the appellant to file transcript in the appeal is dispensed with.

3. Otherwise, the Application in an Appeal filed on 23 February 2022 is 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).

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

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Ratio Decidendi

Legal Principle Established

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NAA 104 of 2021 MLC 3501 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR WHITEOAKS Appellant
AND:	MS MARTON Respondent

Appeal from:	Whiteoaks & Marton [2021] FedCFamC2F 471
Appeal number(s):	NAA 104 of 2021
File number(s):	MLC 3501 of 2018
Judgment of:	AUSTIN J
Date of judgment:	7 March 2022
Catchwords:	FAMILY LAW – APPEAL – Application in an Appeal – Provision of transcript – Where the appellant seeks either provision of transcript by the Court or relief from the obligation to obtain it – Where the appellant is impecunious – Where the apparent weakness of the appellant’s grounds of appeal militates against any finding that the interests of justice demand the Court should bear the expense of procuring the transcript – Where the appellant’s application succeeds in part – Where the appellant is relieved of the obligation to obtain the transcript – Orders made – Application otherwise dismissed.
Legislation:	Family Law Act 1975 (Cth) Pt VII, s 102NA Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.19, 12.22
Cases cited:	Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220
Number of paragraphs:	14
Date of hearing:	7 March 2022
Place:	Newcastle (via video link)
The Appellant:	Litigant in person
The Respondent:	Litigant in person

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	7 MARCH 2022