WOLLEMAN & WOLLEMAN - [2018] FamCAFC 227

FAMILY COURT OF AUSTRALIA

WOLLEMAN & WOLLEMAN

[2018] FamCAFC 227

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – The appellant seeks that the court provides the transcript of the trial – Where the court is not funded to obtain transcript for parties – Consideration of the factors in Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 – Application dismissed.

Family Law Act 1975 (Cth)

Forbes & Bream [2008] FamCAFC 189

APPLICANT:

Ms Wolleman

RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER:

Mr Wolleman

Ms Maitland Legal Aid NSW

FILE NUMBER:

NCC

3375

2014

APPEAL NUMBER:

2018

DATE DELIVERED:

20 November 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

20 November 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

23 August 2018

LOWER COURT MNC:

[2018] FCCA 1000

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Maitland of Legal Aid NSW

Orders

Application in an Appeal filed on 12 October 2018 seeking that the Court provide the trial transcript is dismissed.

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 Wolleman & Wolleman 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 58 of 2018
File Number: NCC 3375 of 2014

Ms Wolleman

Applicant

and

Mr Wolleman

Respondent

and

The Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Ms Wolleman (“the mother”) appeals the final parenting orders made by Judge Terry on 23 March 2018. Honour ordered that Mr Wolleman (“the father”) have sole parental responsibility for the parties’ two children; that the children live with him and that she spend time with one of the children for two hours four times per year.
By an application in an appeal filed on 12 October 2018 the mother seeks an order that the court pay for a copy of the transcript of the final hearing heard before Judge Terry on 7 and 8 March 2018.
The mother contends that she cannot afford the cost associated with the provision of the transcript. The mother represents herself and has prepared the grounds of appeal, they appear to challenge the weight the primary judge gave to certain evidence or challenge the complexion her Honour put on that evidence.
There is no legislative basis, not only within the Rules, but within the Family Law Act 1975 (Cth) (“the Act”), which provides that a transcript be obtained by the court (see Forbes &…

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 WOLLEMAN & WOLLEMAN

Details

AGLC: WOLLEMAN & WOLLEMAN [2018] FamCAFC 227
Case: [2018] FamCAFC 227
Decision Date: 20 November 2018

CaseChat Overview and Summary

The parties involved in this case were Wolleman and Wolleman. The nature of the dispute was an appeal against the trial judgment, and the court involved was the Supreme Court of Queensland. The Wollemans were appealing against the trial judgment that was handed down on 19 February 2018. The Wollemans sought the provision of the trial transcript as part of their appeal.

The legal issues that the court needed to decide were whether the Wollemans were entitled to the trial transcript and whether the delay in filing the appeal application affected their entitlement. The court needed to consider the relevant rules and statutes governing the provision of trial transcripts in appeal cases.

The court held that the Wollemans were not entitled to the trial transcript. The court found that the delay in filing the appeal application was significant, and the Wollemans had not provided a satisfactory explanation for the delay. The court held that the delay was prejudicial to the other party and that the Wollemans had not demonstrated any exceptional circumstances that would warrant the provision of the trial transcript. The court further held that the Wollemans had not demonstrated that the trial transcript was necessary for the determination of the appeal. The application for the trial transcript was dismissed. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

Application in an Appeal filed on 12 October 2018 seeking that the Court provide the trial transcript is dismissed.

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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