Xuarez & O'Halloran & Anor - [2013] FamCAFC 13

FAMILY COURT OF AUSTRALIA

XUAREZ & O’HALLORAN AND ANOR

[2013] FamCAFC 13

FAMILY LAW – APPEAL – PROCEDURE – Application for review of Regional Appeals Registrar’s order – Where the Family Law Rules provide for review of a Regional Appeal Registrar’s order by a judge of the appeal division – Where the Rules do not contain any particular provision about the power or conduct of the Court in such review – Review conducted on basis of a hearing de novo – Where the Court takes into account material before the Registrar, together with any further evidence filed by the parties.

FAMILY LAW – APPEAL – APPLICATION FOR PREPARATION OF APPEAL BOOKS – Where the appellant applies for orders that the Regional Appeals Registrar or the respondents prepare the appeal books – Where the applicant asserts that preparation would impose exceptional hardship on him, by reason of his financial circumstances – Where the applicant’s financial position is not exceptional and the preparation of the appeal books would not visit exceptional hardship on him – Where the applicant also asserts that preparation by the respondents would not impose exceptional hardship on them, because they are funded by Legal Aid – Where the applicant misconstrued the Rule as to the power of the Court to order the Registrar or a respondent to prepare the appeal books – Where in any event, to require either respondent or the Court to prepare the appeal books would be an unreasonable burden in the circumstances of this case – Where having regard to the Notice of Appeal, the orders and the reasons for judgment it is not apparent how the appeal ought succeed – Where the Regional Appeal Registrar’s order provides the applicant generous concessions in appeal book preparation obligations to assist him towards a hearing of his appeal on its merits – application dismissed.

Family Law Act 1975 (Cth) s 121
Family Law Rules 2004 rr 22.18(2), 22.21, 22.40

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Bele & Vaughan (No.2) [2012] FamCAFC 125
Bemert & Swallow (2010) FLC 93-441
Burnett and Green [2008] FamCAFC 160
Harris v Caladine (1991) 172 CLR 84
Marin & Salmon [2012] FamCAFC 157
Oakley & Cooper [2008] FamCAFC 129
Wellington & Child Support Registrar [2012] FamCAFC 34

APPLICANT:

Mr Xuarez

FIRST RESPONDENT

Ms O’Halloran

(Independent Children’s Lawyer)

SECOND RESPONDENT:

Ms Vitela

File Number omitted to comply with s 121 Family Law Act 1975 (Cth)

APPEAL NUMBER:

NA 76 of 2012

DATE DELIVERED:

15 February 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

12 February 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

25 July 2012

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE 1^st RESPONDENT

M Firm

SOLICITOR FOR THE 2^nd RESPONDENT

Ms S

Orders

The application in an appeal filed 7 November 2012 be dismissed.
The applicant pay each respondent’s costs of the application fixed in the sum of $1,320.00 plus GST.

IT…

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 Xuarez & O'Halloran & Anor

Details

AGLC: XUAREZ & O’HALLORAN AND ANOR [2013] FamCAFC 13
Case: [2013] FamCAFC 13
Decision Date: 15 February 2013

CaseChat Overview and Summary

The case of Xuarez & O'Halloran & Anor involved an application by Mr Xuarez seeking an order that either the respondents or the Registrar of the Court should prepare the appeal books for the appeal. The dispute centred on Mr Xuarez's assertion that preparing the appeal books would impose exceptional hardship on him due to his financial circumstances, non-English speaking background, and the fact that the respondents were legally represented and in receipt of legal aid. The matter was heard in the Court of Appeal.

The primary legal issue before the court was whether the Registrar was correct in dismissing Mr Xuarez's application for an order that either the respondents or the Registrar prepare the appeal books. The court had to consider the grounds put forward by Mr Xuarez and assess whether they were sufficient to establish that preparation of the appeal books would impose exceptional hardship on him. The court was also required to determine whether Mr Xuarez had misconstrued the provisions of the relevant rule.

In considering Mr Xuarez's application, the Registrar noted that the evidence of his financial position was limited and that he had not provided evidence of the likely costs of photocopying and binding. The Registrar concluded that she was not satisfied that Mr Xuarez had no capacity to meet the costs of preparing the books and therefore, was not satisfied that preparation would impose an exceptional hardship on him. The Registrar also concluded that Mr Xuarez had not demonstrated that his non-English speaking background would impose exceptional hardship and that his argument misconstrued the rule. The Registrar correctly determined that only if the Court is satisfied that it would impose exceptional hardship on the appellant should it then consider the possibility of the Registrar or a respondent being ordered to prepare the books.

The application was dismissed, and Mr Xuarez was ordered to pay each respondent's costs of the application fixed in the sum of $1,320.00 plus GST.

Orders

Orders of the court

The application in an appeal filed 7 November 2012 be dismissed.

The applicant pay each respondent’s costs of the application fixed in the sum of $1,320.00 plus GST.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Correctly, the Registrar identified and set out the provisions of r 22.18, which confers on the Registrar the power to order a respondent or the Registrar to prepare the appeal books, if satisfied that preparation by the appellant would impose exceptional hardship on them. The rule provides:Preparation of appeal books(1)The appellant or, if so ordered, the cross-appellant is responsible for preparing and filing the appeal books, including arranging to obtain any transcript required to be included in the appeal books.(2)If a Judge or Regional Appeal Registrar is satisfied that preparing the appeal books would impose exceptional hardship on the appellant, the Judge or Regional Appeal Registrar may order either of the following to prepare and file the appeal books:(a) a respondent;(b) the Regional Appeal Registrar. The Registrar identified, by reference to Mr Xuarez’s affidavit and written submissions, the three grounds on which he asserted that preparation of the appeal books would impose an exceptional hardship on him. First, financial inability. Second, being a lay person of non-English speaking background. Third, that the respondents are each in receipt of grants of legal aid and legally represented, and therefore have a greater responsibility and capacity to prepare the books. In considering Mr Xuarez’s argument that he was financially unable to prepare the books, the Registrar noted that evidence of his financial position was “scant”:In his affidavit he asserts that his only source of income is from a Disability Support Pension paid by Centrelink and annexes his pension concession card. In his submissions he states that the pension is a limited amount of money to cover basic needs or basic living expenses. He does not particularise either the income or his needs or expenses, nor his current property, resources or liabilities. The Registrar had regard to the settled appeal book index and observed that most of the documents were not lengthy, save for one affidavit. She noted that Mr Xuarez had not provided evidence of any quotes for the likely costs of photocopying and binding, which was a relevant consideration to her decision when considering his financial means. The Registrar concluded, on the basis of the limited evidence put before her, that she was not satisfied Mr Xuarez had no capacity to meet the costs of preparing the books. Referring to the reduced responsibility for preparation which she would order in his favour, the Registrar concluded that she was not satisfied that preparation would impose an exceptional hardship. The Registrar then considered the evidence and submissions in relation to Mr Xuarez’s non-English speaking background. She concluded she was not satisfied that he had demonstrated that by this reason the preparation of the appeal books would impose exceptional hardship on him. As to the significance of the responsibility and capacity of the respondents to prepare the appeal books, the Registrar considered Mr Xuarez’s evidence and submissions, and correctly determined that his argument misconstrued the rule. The correct position is that only if the Court is satisfied that it would impose exceptional hardship on the appellant should it then consider the possibility of the Registrar or a respondent being ordered to prepare the books.