YAU & LAC - [2019] FamCAFC 156

FAMILY COURT OF AUSTRALIA

YAU & LAC

[2019] FamCAFC 156

FAMILY LAW – APPEAL – TRANSCRIPT – Where the applicant seeks that the court provide the transcript relevant to her appeal at its own expense – Where the applicant has not satisfied this Court as to her financial circumstances and why she needs the transcript she seeks – Where the merits of the appeal are seriously in doubt given that it is difficult to discern from the applicant’s grounds of appeal what appealable errors are asserted – Where the application stands dismissed.

FAMILY LAW – APPEAL – FURTHER EVIDENCE – Where the further evidence comprises matters that have occurred or arisen since the orders the subject of the appeal were made – Where it has not been demonstrated that receipt of the further evidence would reveal error by the trial judge or would have produced a different result if it had been available at trial – Where it is not apparent that the evidence is admissible and there is no doubt that it is controversial – Application dismissed.

Family Law Act 1975 (Cth) s 93A(2)

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189
Sampson & Hartnett(Provision of [2010] FamCAFC 220 Transcript) (2013) FLC 93-542; [2010] FamCAFC 220

APPLICANT:

Ms Yau

RESPONDENT:

Mr Lac

FILE NUMBER:

MLC

6445

2016

APPEAL NUMBER:

SOA

101

2018

DATE DELIVERED:

18 September 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

2 September 2019

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

Order made 2 September 2019

The Applications in an Appeal filed on 23 May 2019 and 7 June 2019 be dismissed.

Order 18 September 2019

If so advised, the applicant obtain the transcript of the hearing before the trial judge as set out in items 79 – 85 inclusive of the appeal index attached to the order of the Appeal Registrar made on 23 April 2019, and provide the same electronically to the Court and to the respondent on or before the close of business on Monday 4 November 2019.

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 Yau & Lac 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 DIVISION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 101 of 2018
File Number: MLC 6445 of 2016

Ms Yau

Applicant

And

Mr Lac

Respondent

REASONS FOR JUDGMENT

Introduction

On 2 September 2019 I heard…

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: YAU & LAC [2019] FamCAFC 156
Case: [2019] FamCAFC 156
Decision Date: 18 September 2019

CaseChat Overview and Summary

The applicant in this case sought a transcript of her appeal proceedings to be provided at the court’s expense and also sought to adduce further evidence. The respondent opposed both applications. The court considered the applications in the context of an appeal from a decision made in family law proceedings.

The legal issues before the court were whether the applicant had demonstrated sufficient financial hardship to warrant the court providing the transcript at its own expense, and whether the further evidence was admissible and would reveal an error by the trial judge or produce a different result if it had been available at trial.

The court found that the applicant had not satisfied the court as to her financial circumstances or why she needed the transcript she sought. The court was also not satisfied that the merits of the appeal were not seriously in doubt. The court could not discern from the applicant’s grounds of appeal what appealable errors were asserted. The court also found that the further evidence related to matters that had occurred or arisen since the orders subject of the appeal were made and it was not apparent that the evidence was admissible. There was no doubt that the evidence was controversial. The court was not satisfied that receipt of the further evidence would reveal an error by the trial judge or would have produced a different result if it had been available at trial.

The court dismissed the applicant’s applications for the transcript to be provided at the court’s own expense and for the further evidence to be adduced.

Orders