WOODBY-CHATTERJEE & CHATTERJEE - [2018] FamCAFC 182

FAMILY COURT OF AUSTRALIA

WOODBY-CHATTERJEE & CHATTERJEE

[2018] FamCAFC 182

FAMILY LAW – APPLICATION IN AN APPEAL – Provision of transcript – Where the applicant seeks that the respondent provide a copy of the transcript of proceedings before the primary judge – Whether the court has the power to make such an order – Discussion of Sampson & Hartnett (2013) FLC 93-542 – Prima facie merits of the appeal – Whether the applicant can afford all or parts of the transcript – Application dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Reinstatement – Where the appeal was deemed abandoned because the applicant failed to file appeal books that complied with the registry’s requirements – Where reinstatement would be futile if the applicant is unable to also file the transcript – Where it is likely that the applicant will be able to obtain the parts of the transcript necessary to prosecute the appeal – Application allowed – Appeal reinstated.

Family Law Act 1975 (Cth) ss 94(1AA), 94(2)
Family Law Rules 2004 (Cth) rr 22.21, 22.44

Bainton v Rajski (1992) 29 NSWLR 539
Barton v Walker [1979] 2 NSWLR 740
Chatterjee & Chatterjee-Woodby [2018] FamCA 474
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Sampson & Hartnett (2013) FLC 93-542; [2010] FamCAFC 220

APPLICANT:

Ms Woodby-Chatterjee

RESPONDENT:

Mr Chatterjee

FILE NUMBER:

SYC

3822

2013

APPEAL NUMBER:

2018

DATE DELIVERED:

19 September 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

6 September 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

6 April 2018

LOWER COURT MNC:

[2018] FamCA 474

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Obrart

SOLICITOR FOR THE APPLICANT:

G & D Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Bridger

SOLICITOR FOR THE RESPONDENT:

Bricknell Legal

Orders

Pursuant to r 22.44 of the Family Law Rules 2004 (Cth), Appeal EA61 of 2018 is reinstated.
The time in which the appellant is to file and serve the appeal books is extended up to and including 24 September 2018.
The time for filing and serving an electronic copy of the transcript is extended up to and including 10 October 2018.

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 Woodby-Chatterjee & Chatterjee 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 61 of 2018
File Number: SYC 3822 of 2013

Ms Woodby-Chatterjee

Applicant

And

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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Details

AGLC: WOODBY-CHATTERJEE & CHATTERJEE [2018] FamCAFC 182
Case: [2018] FamCAFC 182
Decision Date: 19 September 2018

CaseChat Overview and Summary

The appeal, EA61 of 2018, originated from a decision made by the Family Court in a case involving Woodby-Chatterjee and Chatterjee. The appeal was initially deemed abandoned due to the appellant's failure to file appeal books that complied with the registry's requirements. The appellant subsequently applied for the reinstatement of the appeal, as well as for an order that the respondent provide a copy of the transcript of the proceedings before the primary judge. The court was required to determine whether it had the power to make such an order, and whether the appellant could afford all or parts of the transcript. Additionally, the court needed to decide whether the reinstatement of the appeal would be futile if the appellant was unable to file the transcript.

The court examined the case of Sampson & Hartnett (2013) FLC 93-542 to consider the power of the court to order the provision of a transcript. The court concluded that, although it may not have the power to order the provision of the entire transcript, it could order the provision of parts of the transcript necessary for the prosecution of the appeal. The court further considered the prima facie merits of the appeal, finding that the appeal had prospects of success. In light of the likelihood that the appellant would be able to obtain the necessary parts of the transcript, the court allowed the application for reinstatement of the appeal.

The court ordered that the appeal, EA61 of 2018, be reinstated pursuant to rule 22.44 of the Family Law Rules 2004 (Cth). The time in which the appellant was to file and serve the appeal books was extended to 24 September 2018. The time for filing and serving an electronic copy of the transcript was extended to 10 October 2018. The form of the order was subject to the entry of the order in the court’s records.

Orders

Orders of the court

Pursuant to r 22.44 of the Family Law Rules 2004 (Cth), Appeal EA61 of 2018 is reinstated.

The time in which the appellant is to file and serve the appeal books is extended up to and including 24 September 2018.

The time for filing and serving an electronic copy of the transcript is extended up to and including 10 October 2018.

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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