Zlotnik & Germasimov
[2021] FamCAFC 45
•9 April 2021
FAMILY COURT OF AUSTRALIA
Zlotnik & Germasimov [2021] FamCAFC 45
Appeal from: Zlotnik & Germasimov [2020] FamCA 713 Appeal number(s): EAA 135 of 2020 File number(s): SYC 503 of 2015 Judgment of: RYAN J Date of judgment: 9 April 2021 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Dispense with transcript – Where appellant understands nature of challenges is curtailed without trial transcript – Appellant asserts misapplication of statutory provision - Where leave is granted for the appeal to be heard without the trial transcript. Division: Appeal Division Number of paragraphs: 10 Date of hearing: 7 April 2021 Place: Sydney The Applicant: In person Solicitor for the Respondent: Genuine Legal The Independent Children's Lawyer: No appearance ORDERS
EAA 135 of 2020
SYC 503 of 2015APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR ZLOTNIK
Applicant
AND: MS GERMASIMOV
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
RYAN J
DATE OF ORDER:
7 APRIL 2021
AMENDED PURSUANT TO SLIP RULE ON 8 APRIL 2021THE COURT ORDERS THAT:
1.The appellant be permitted to proceed with his appeal without having included in the appeal book the transcript of proceedings dated 29 and 30 January 2020.
2.Orders 1.32,
2, 3, 4 and 5 dated 4 March 2021 be discharged.3.The Application in an Appeal filed on 4 March 2021 otherwise be dismissed.
4.The costs of the application will be costs in the appeal.
IT IS FURTHER NOTED:
A.These orders have been amended pursuant to rule 17.02 of the Family Law Rules 2004.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zlotnik & Germasimov has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RYAN J:
By an Application in an Appeal filed on 4 March 2021, Mr Zlotnik (“the father”) seeks an order that his appeal be heard and determined without the trial transcript. The trial occurred over two days on 29 and 30 January 2020.
The father’s appeal is against final parenting orders made on 27 August 2020 in proceedings between him and Ms Germasimov (“the mother”) and which relate to the parties’ child, B, born in 2012 (“the child”).
Essentially, the father appeals against orders that provide for the child to live with the mother and spend time with him (Order 3); allow the parties to take the child interstate and overseas and ancillary orders (Orders 4–7 and 15); as well as orders that require the father to keep the child’s Australian and Country J passports current (Order 9) and, for the father to request from the mother the release of the child’s passports in the event that the passports are required to facilitate the child’s overseas travel (Order 12).
Procedural orders dated 4 March 2021 directed the appellant father to file and serve an electronic copy of the transcript of proceedings on 29 and 30 January 2020 by 15 April 2021 (Order 4).
The father deposes that he would not seek to rely upon the transcript in support of his grounds of appeal. His appeal is limited to what is said to be inconsistencies in the orders and whether the orders accord with certain statutory provisions. No challenge is made to his Honour’s findings of fact. In any case, the father is confident that he can present his argument without relying on the transcript. The mother says the issue is a matter for the Court but that it is preferable for the Appeal Book to include everything placed before the primary judge.
The father understands that proceeding without the transcript may make success in the appeal more difficult, but that is a risk he is willing to run.
I am content to allow the father to advance his appeal without provision of the trial transcript. I take into account that the primary judge made extensive findings in relation to the oral evidence, none of which is under challenge. Furthermore, the Independent Children’s Lawyer (“ICL”) who was appointed to represent the child’s best interests, filed a Submitting Notice on 6 April 2021 and did not participate in the hearing today. The ICL submits to any order the Court may make in relation to the father’s application.
It seems to me that the limited scope of the appeal lends itself to the course proposed by the father. Parties are encouraged to only include in the Appeal Books the trial material relevant to the matters at issue in the appeal, which is the approach the father has taken here. I will order accordingly.
The father also seeks an order which effectively grants the parties leave to file updating consent orders. The order sought is unnecessary.
Finally, the application was heard remotely. Unfortunately there were technical difficulties with the father’s connection at his end which made the hearing very difficult. His connection went silent for periods and at other times there was loud background noise and echo. As I explained at the end of this hearing, it would not be possible to conduct an appeal hearing under these conditions. But as the Court has resumed face to face hearings, today’s difficulties should not affect the future conduct of the matter.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ryan. Associate:
Dated: 9 April 2021
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