Baghti & Baghti & Ors
[2013] FamCAFC 7
•8 February 2013
FAMILY COURT OF AUSTRALIA
| BAGHTI & BAGHTI AND ORS | [2013] FamCAFC 7 |
| FAMILY LAW – APPEAL – APPLICATION FOR EXTENSION OF TIME – Where the husband sought an order extending the time to file a Notice of Appeal against orders made on 27 November 2012 – Where the husband was unable to file his Notice of Appeal in time because the orders and ex tempore reasons for judgment delivered by the trial judge on 27 November 2012 were not made available to the parties until 18 January 2013 – Where the Full Court found the husband gave an adequate explanation of his failure to file the Notice of Appeal within time, that he filed his application seeking an extension of time in a timely fashion, and that the proposed grounds of appeal were not devoid of all merit – Application granted – Application for costs by the respondents and the Independent Children’s Lawyer reserved to the hearing on the appeal. FAMILY LAW – APPEAL – ORAL APPLICATION FOR ADJOURNMENT – Where an oral application was made on behalf of the husband to adjourn the hearing of his appeal against the trial judge’s orders refusing the husband’s application to stay the parenting and property settlement orders made on 22 August 2012 – Where senior counsel for the husband submitted the contents of the appeal book were “insufficient” to enable the court to properly hear and determine the appeal and that it would be unjust if the husband did not have the opportunity to place additional documents before the court – Where there was some confusion until the date before the appeal hearing as to whether that appeal would be heard by the Full Court on 6 February 2013 – The Full Court determined it would not be in the interests of justice to prevent the husband from having the opportunity to place all relevant documents and submissions before the court – Orders made referring the matter back to the Appeals Registrar for further directions – Application for costs by the respondents and the Independent Children’s Lawyer reserved to the hearing on the appeal. FAMILY LAW – APPEAL – APPLICATION SEEKING PROVISION OF TRANSCRIPT – Where the husband filed an application in a case before the trial judge seeking an order that the court provide the transcript of the trial to the parties, and the trial judge referred that application to be heard and determined by the Full Court – Where it was argued the husband did not have the financial means to pay for the transcript – The Full Court found the husband failed to demonstrate that it was necessary for all the transcript to be obtained and that there were exceptional circumstances to justify such expenditure by the court – Application dismissed – Where the husband then sought an order that he and his legal representatives be permitted to listen to the audio recordings and identify the parts of the transcript which are relevant and necessary for the purposes of the appeal with a view to making a further application to the court if so advised – Orders made permitting all parties including the Independent Children’s Lawyer and their legal representatives to listen to the audio recordings for the purposes of the appeal. |
| Family Law Act 1975 (Cth) s 94 Family Law Rules 2004 (Cth) rr 22.02, 22.03, 22.11 |
| Forbes & Bream [2008] FamCAFC 189 GallovDawson (1990) 93 ALR 479 McMahon and McMahon (1976) FLC 90-038 Sampson & Hartnett(Provision of Transcript) [2010] FamCAFC 220 Tormsen and Tormsen (1993) FLC 92-392 |
| APPLICANT: | Mr Baghti |
| FIRST RESPONDENT: | Ms Baghti |
| SECOND RESPONDENT: | Mr B |
| THIRD RESPONDENT: | Mrs B |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 2145 | of | 2009 |
| APPEAL NUMBER: | EA | 118 | of | 2012 |
| EA | 10 | of | 2013 |
| DATE DELIVERED: | 8 February 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Stevenson JJ |
| HEARING DATE: | 6 February 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 August 2012 & 27 November 2012 |
| LOWER COURT MNC: | [2012] FamCA 711 [2012] FamCA 1112 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Neil SC with Mr Milanovic |
| SOLICITOR FOR THE APPLICANT: | Demir Legal |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Lawson |
| SOLICITOR FOR THE FIRST RESPONDENT: | Piggot Stinson |
| COUNSEL FOR THE SECOND & THIRD RESPONDENTS: | Mr Gould |
| SOLICITOR FOR THE SECOND & THIRD RESPONDENTS: | McDonell Milne Toltz |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Messner |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
IT IS NOTED that publication of this judgment by this Court under the pseudonym Baghti & Baghti and Ors has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 118 of 2012; EA 10 of 2013
File Number: SYC 2145 of 2009
| Mr Baghti |
Applicant
And
| Ms Baghti |
First Respondent
And
| Mr B |
Second Respondent
And
| Mrs B |
Third Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
On 6 February 2013 we made the following orders:
1.The time for the husband to file a notice of appeal against the orders made by Justice Fowler on 27 November 2012 be extended to the close of business on 13 February 2013.
2.The proceedings in EA 10 of 2013 be referred to the Appeals Registrar for the purpose of conducting a directions hearing to prepare the appeal for hearing and to list the hearing of the appeal.
3.No later than 48 hours prior to the directions hearing before the Appeals Registrar each party if so advised file and serve a draft appeal index setting out the documents sought to be included in the appeal book or any supplementary appeal book for the purposes of the appeal against the orders of Justice Fowler made on
27 November 2012.4.The oral applications for costs made today be reserved to the date of the hearing of the appeal in EA 10 of 2013.
5.The application made in paragraph 4 of the application in a case filed on 28 September 2012 be dismissed.
6.The husband and his legal representatives be permitted to listen to the audio of the transcript of the hearing before Justice Fowler between 29 August 2011 and 22 September 2011 with a view to identifying those parts of the transcript which may be relevant to appeal number EA 118 of 2012 and if so advised to making a further application seeking the provision of those parts of the transcript so identified.
7.The wife, the second and third respondents, and the Independent Children’s Lawyer, and their legal representatives be permitted to listen to the audio recordings of the transcript of the hearing before Justice Fowler between 29 August 2011 and 22 September 2011 in SYC 2145 of 2009.
When we made these orders we indicated that we would be delivering our reasons for judgment subsequently. These are our reasons for judgment.
Application in an appeal filed on 24 December 2012
Introduction
This is an application in an appeal filed on 24 December 2012 by the husband in these proceedings. There are a number of orders sought in that application but the only orders that we are concerned with are, in summary, an order extending the time to file a Notice of Appeal against orders made by Fowler J on 27 November 2012, and subject to time being extended, an order expediting the hearing of the appeal, and an order reserving the costs of the application.
The application is supported by an affidavit of the husband filed on
24 December 2012, a draft Notice of Appeal dated 24 December 2012, and written submissions filed on the husband’s behalf on 30 January 2013.
The application is opposed by the wife, and by the second and third respondents. They each filed a Response and supporting Affidavits on
30 January 2013. Written submissions were also filed on behalf of the wife on 4 February 2013, and on behalf of the second and third respondents on
6 February 2013. We note that apart from seeking dismissal of the husband’s application in an appeal, the wife and the second and third respondents sought that their respective applications for security for costs filed on 14 November 2012 in relation to appeal number EA 118 of 2012 be heard and determined.
As for the Independent Children’s Lawyer, she filed written submissions on
4 February 2013 indicating that she did not wish to be heard in relation to the husband’s application in an appeal.
Relevant Statute Law and Rules of Court
Section 94 of the Family Law Act 1975 (Cth) (“the Act”) deals with appeals from a decision of a judge of the Family Court.
Section 94(1) of the Act provides as follows:
(1)Subject to sections 94AAA and 94AA, an appeal lies to a Full Court of the Family Court from:
(a) a decree of the Family Court, constituted otherwise than as a Full Court, exercising original or appellate jurisdiction:
(i)under this Act; or
(ii) under any other law; or
…
Section 94(1A) provides:
(1A) An appeal under subsection (1) or (1AA) shall be instituted within the time prescribed by the standard Rules of Court or within such further time as is allowed in accordance with the standard Rules of Court.
Section 94(2D) provides:
(2D)Applications of a procedural nature, including applications:
(a) for an extension of time within which to institute an appeal under subsection (1) or (1AA); or
…
may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.
Section 94(2E) provides that the rules of Court “may make provision enabling applications of a kind mentioned in subsection (2D) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.”
Section 94(2F) provides:
(2F) No appeal lies under this section from an order or decision made under subsection (2B) or (2D).
Chapter 22 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with appeals.
Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.
Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made.
Rule 22.11 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.
Applicable Principles
The law in relation to applications for extension of time is well settled. In the High Court decision of GallovDawson (1990) 93 ALR 479, McHugh J said (at 480-481):
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.
That decision has been followed in a number of Full Court cases including such cases as McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
In summary, what those cases tell us, and in particular Gallo v Dawson, is that there are a number of relevant factors which need to be addressed, such as whether there are adequate reasons to explain the failure to file a Notice of Appeal within time, whether there is a substantial issue to be raised on appeal, if there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the history of the proceedings, the conduct of the parties in the proceedings, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application, but the overarching principle is to ensure that injustice is not visited upon, primarily the applicant, but also the respondent.
Discussion
As to the relevant factors in this case, those that have been identified and in respect of which submissions were made by all counsel (except of course counsel for the Independent Children’s Lawyer) are firstly, the reasons for the failure to file the Notice of Appeal within time, and secondly the merits of the appeal.
The reasons for the failure to file the Notice of Appeal within time
On 27 November 2012 Fowler J delivered ex tempore reasons for judgment and made orders.
The husband gave instructions to his then solicitors that he wished to appeal those orders, but a Notice of Appeal was not able to be adequately prepared until his Honour’s written reasons and sealed orders were provided to the parties. Accordingly, on 19 December 2012 the husband’s then solicitor sent an email to his Honour’s associate in these terms:
Dear Associate
We refer to final orders and judgment delivered by His Honour Justice Fowler on 27 November 2012. To date we have not received a sealed copy of the Orders and Judgment.
The Husband intends to lodge an appeal to the Full Court against the orders made by His Honour on 27 November 1012. The last day to appeal is
25 December 2012.Please advise if the orders and judgment are available and can be forwarded to the parties as a matter of urgency.
Thank you in anticipation of your response.
Then, on 21 December 2012 the husband sent a letter himself to the Appeals Registrar in the following terms:
Dear Registrar,
RE: EA118/2012 [Baghti v Baghti]
Attached is a copy of email forwarded by my solicitor to the Associate of His Honour Justice Fowler.
I understand that to date we have not received the judgment and orders made by His Honour on 27 November 2012. As noted in the email to the Associate the last day to appeal is 25 December 2012.
I wish to file the appeal no later than 24 December 2012. If the orders which are required to be attached to the appeal are not available, can I file the notice of appeal without the orders and if not I respectfully seek an extension of time to file the appeal
Please urgently advise whether I or someone on my behalf can attend the registry today to file the notice of appeal without the orders.
Further one of the orders of His Honour which I am appealing is His Honour’s order refusing my application for a stay of the final parenting and property orders made by His Honour on 22 August 2012. Another order which I am seeking from the Full Court is an order that the Court make available to the parties the transcript of the proceedings before His Honour. I cannot proceed with the substantive appeal until the transcript becomes available.
I seek to have the appeal in relation to the stay and the transcript determined by the Full court at the earliest available opportunity. Please advise the earliest possible range of dates for an urgent listing of the
my [sic] appeal for a stay and an order for the transcript.Please reply to my email: …
Yours sincerely,
[Mr Baghti]
On the same day the Appeals Registrar sent the following email to the husband:
Dear Ms [sic] [Baghti],
The Appeals Registry will be open today until 4.30 pm today [sic], closed between 1-2. As per the Notice of Appeal, a sealed copy of the orders is required to be attached to the Application at the time of filing. You may seek an extension of time to file by lodging an Application in an Appeal, Affidavit and Draft Notice of Appeal. Copies attached for your convenience.
I am unable to advise the “earliest” time frame in which an Appeal will be heard. The current time frame is between 12 - 18 months approximately. You may make an application for expedition.
The Court does not facilitate access to the transcript. This is available by contacting Auscript on 1800 287 274.
All documents may be lodged with the court on Monday 24 December 2012 on the ground floor, however they will not be able to provide advise [sic] regarding…
In light of this information, and the absence still of the written reasons for judgment of his Honour and the sealed orders, on 24 December 2012 the husband filed the application that is now before us and the supporting documents referred to above.
We observe that his Honour’s written reasons and the sealed orders were made available to the parties on 18 January 2013.
Clearly, and we do not understand the respondents to suggest otherwise, this adequately explains the husband’s failure to file his Notice of Appeal within time, and he has taken the appropriate course of filing within time an application in an appeal seeking an extension of time. Thus there can be no criticism of the husband in this regard.
The merits of the appeal
It is here where the opposition of the respondents to this application is to be found.
The orders made by his Honour on 27 November 2012 primarily range from orders for the payment of the costs of the trial before his Honour, and orders providing for the terms of sale of a business, to orders refusing to stay the parenting and property settlement orders. The draft Notice of Appeal seeks to appeal against all orders made by his Honour. In addition, the husband complains that his Honour failed to deal with certain applications that he had made to his Honour, for example, an application that the wife pay the amount of arrears owing under the mortgage registered on the title to the former matrimonial home.
There are a total of 29 grounds of appeal set out in the draft Notice of Appeal attacking both the orders made and his Honour’s failure to address all of the applications before him.
Mr Lawson, counsel for the wife, submits that there is no “utility” in allowing this appeal to proceed. He suggests that it is difficult if not impossible to discern where amongst the many grounds of appeal that appealable error is alleged. He says in paragraph 29 of his written submissions that “[a]lmost exclusively, the proposed grounds of appeal seem to argue that the orders of
27 November 2012 should be set aside simply because the Appellant Husband would have come to a different conclusion on the facts from that at which the trial judge arrived”.
Mr Lawson has taken us through many of the grounds of appeal and suggested that either they simply complain that his Honour should have made a different finding, without explaining how his Honour fell into error, or that indeed, in some instances, they complain about findings that were not made on
27 November 2012, but rather made in his Honour’s reasons for judgment delivered on 22 August 2012, or not made at all by his Honour.
Mr Lawson does concede though that some grounds, for example Grounds 4, 5 and 6 in relation to the costs orders are “proper” grounds of appeal.
Mr Gould, counsel for the second and third respondents adopted the submissions of Mr Lawson in this regard.
As is established, it is necessary for us to “have regard to the prospects of the appeal succeeding”. However, in the context of an application seeking an extension of time to file a Notice of Appeal, that is necessarily a difficult exercise for us to undertake, despite having the benefit of the reasons for judgment of the trial judge, the transcript of the proceedings before the trial judge, the draft Notice of Appeal, and submissions of counsel. It is not for us though to determine the actual merits of the appeal; our task is to consider whether there is an arguable case on appeal. Indeed, there must necessarily be a low threshold such that where it appears that there is even the remotest chance of success then that is enough. In this regard the exercise is somewhat analogous to the exercise required in determining an application for summary judgment, and to put the proposition another way, unless it is apparent that the appeal is hopeless or doomed to fail, then subject to where the justice of the case lies, the appeal should be allowed to proceed.
In this case, although there are a number of different orders the subject of the draft Notice of Appeal, and there are therefore a number of different grounds of appeal, and even though it could be said that some grounds of appeal have more prospects of success than others, we are not satisfied that the appeal is hopeless or doomed to fail.
It must also be remembered that the draft Notice of Appeal was hastily drawn, and drawn without the benefit of either the written reasons for judgment of the trial judge or the transcript of the proceedings before his Honour. Indeed,
Mr Neil, senior counsel for the husband, sought that if time was extended that the husband have the opportunity to prepare and file a fresh Notice of Appeal.
Conclusion
As the authorities recognise, our consideration of the relevant factors informs us in determining the fundamental issue, namely where the justice of the case lies. Here there is an adequate explanation of the failure to file the Notice of Appeal within time, and significantly the husband filed his application seeking an extension of time in a timely fashion. Next, although it has to be said that there are real doubts about the merits of the appeal, and to a large extent we accept the submissions of Mr Lawson, as adopted by Mr Gould, in this regard, it is not a case where we are persuaded that the appeal is devoid of all merit. Accordingly, it seems to us that the justice of the case requires that the application be granted.
This outcome also gains support from the fact that the only reason that the husband found himself in the position that he did was his inability, through no fault of his own, to file his Notice of Appeal within time in the absence of the written reasons for judgment of his Honour and the sealed orders. In other words, if those documents had been available and the husband had filed his Notice of Appeal within time in the same terms as the draft Notice of Appeal before us, then subject to perhaps an application by the respondents to dismiss the appeal because of the inadequacy of the grounds of appeal, the husband’s appeal would have been able to proceed.
Costs and other matters
The wife and the second and third respondents sought orders for costs against the husband in relation to his application seeking an extension of time. Those applications were opposed by the husband.
The Independent Children’s Lawyer also sought orders for costs not only against the husband but also against the wife and the second and third respondents. That application was opposed by the husband insofar as the order was sought against him, and by the second and third respondents insofar as the order was sought against them, and we expect that ultimately the wife will also oppose that order insofar as it seeks an order for costs against her.
We determined that in the circumstances of this case it was appropriate to reserve consideration of these applications for costs to the hearing of the appeal against the orders made by the trial judge on 27 November 2012.
In relation to the application by the husband for expedition of the hearing of his appeal against the orders made on 27 November 2012, we confirm our indication given to the parties during the course of the hearing before us that, subject to the appeal being ready to proceed, the Appeals Registrar should list the appeal for hearing promptly following completion of the directions hearing to which we refer later in these reasons.
As to the applications by the wife and the second and third respondents that their respective applications for security for costs in relation to appeal number EA 118 of 2012 be heard and determined, we confirm our indication given to the parties during the course of the hearing before us that those applications should be listed by the Appeals Registrar to be heard at the same time as the appeal against the orders made on 27 November 2012.
The application to adjourn the hearing of the appeal against the orders made by the trial judge on
27 November 2012 refusing the husband’s application for a stay of the parenting and property settlement orders
Introduction
At the commencement of the hearing before us Mr Neil, the husband’s senior counsel, in effect made an application, subject to the time to file the husband’s Notice of Appeal being extended, to adjourn the hearing of the husband’s appeal against the orders made by the trial judge on 27 November 2012 refusing the husband’s application to stay the parenting and property settlement orders.
In summary, Mr Neil submitted that the contents of the appeal book before the court for the purposes of that appeal were “insufficient” to enable the court to properly hear and determine that appeal. Specifically, there were further documents that the husband says should be before the court, and it would be unjust if the husband did not have the opportunity to place those documents before the court and to make further submissions based on them.
The application was opposed by all of the other parties, and the Independent Children’s Lawyer.
Background
On 22 January 2013 the Appeals Registrar conducted a directions hearing in appeal numbers EA 10 of 2013 and EA 118 of 2012. In respect of the former, the Appeals Registrar made orders that the hearing of the application to extend the time to appeal the orders refusing the stay be listed before the Full Court on a date and time to be confirmed but likely to be on 6 February 2013 at 10:00am, that if the time was extended the procedural hearing regarding the balance of the orders made on 27 November 2012 sought to be appealed against be adjourned to a date to be advised, identifying the documents to be included in the appeal book for the application to extend time in relation to the appeal against the orders refusing the stay, providing for the husband to prepare and file that appeal book, and providing for the filing of written submissions.
Following those orders there was a series of email correspondence between the husband and the Appeals Registrar, and to a lesser extent, between the wife’s solicitor and the Appeals Registrar (Exhibit 1) attempting to clarify what would be heard on 6 February 2013, and as for the husband, raising the need as he saw it for further documents to be included in the appeal book in relation to the application to extend time and his appeal against the orders refusing the stay. Eventually, on 29 January 2013 the Appeals Registrar advised the husband that she did not intend to amend her order to include further documents in the appeal book, and that the husband should take legal advice about filing an application in an appeal.
In conformity with the orders of the Appeals Registrar, on 30 January 2013 the husband filed the appeal book.
Then, on 5 February 2013, namely the day prior to the hearing before us, the Appeals Registrar sent this email to all of the parties:
Dear Sir or Madam
I refer to the wife’s submission below, and to earlier correspondence from the appeal registry to the parties regarding the listing before the Full Court on Wednesday 6 February 2013.
I confirm that the application seeking to extend time to appeal orders of the Honourable Justice Fowler made on 27 November 2012 is the only application listed before the Full Court at this stage. If the extension of time is granted, the Full Court will then hear the part of that appeal regarding the refusal of the stay.
The applications seeking security for costs, filed by the wife and second and third respondents, are not listed for hearing before the Full Court on
6 February 2013.I note that the wife and second and third respondents advised during the procedural hearing on 22 January 2013, that they seek that their applications for security for costs be heard prior to the adjourned procedural hearing in EA118 of 2012, and for that reason I directed that those parties file responses setting out the orders sought regarding their security applications.
I confirm the advice I gave during that procedural hearing, that, applications for security for costs are not usually heard by the Full Court until the appeal books have been filed. In this matter the appeal book index in the substantive appeal against order [sic] of the Honourable Justice Fowler made on 22 August 2012, EA118 of 2012, has not yet been settled. In EA10 of 2013, only the part of the appeal book relation [sic] to the refusal of the stay has been filed.
It will be a matter for the Full Court on 6 February 2013 as to whether any directions are made regarding the hearing of the security applications or not.
Kind Regards,
…
Eastern Region Appeals Registrar
(Original emphasis)
Discussion
It is common ground that no application was filed by the husband to adjourn the hearing, or to seek leave to rely on further documents for the purposes of the appeal, or to review the orders made by the Appeals Registrar on
22 January 2013. Mr Neil candidly conceded that those actions were available to the husband, and that he had no explanation to proffer on behalf of his client for not taking such action, save and except to say, that the husband was unrepresented during most of the relevant period, and in any event, there was too little time to enable a timely application to be made. He also put that it was apparent from the email correspondence that there was some confusion until the email of 5 February 2013 whether the appeal against the orders refusing the stay would be heard by the Full Court on 6 February 2013.
To repeat, Mr Neil primarily supported his last minute oral application to adjourn the hearing by submitting that it would be unfair to the husband to prevent him from putting before the court all the relevant documents and his submissions in relation to the same. Indeed Mr Neil went so far as to submit that without those documents he was not in a position to argue the appeal.
For the respondents and the Independent Children’s Lawyer it was put that they were ready to proceed on the appeal against the orders refusing the stay, and that if that was to occur they did not require the opportunity to put any more documents before the court. In addition, Mr Gould submitted, correctly in our view, that it was not accurate to say that the husband was not legally represented during the relevant period; the email correspondence reveals that the husband had the benefit of advice from Mr Milanovic, his current junior counsel.
Conclusion
We accept that prior to the email of 5 February 2013 there was some confusion as to what would be heard by the Full Court on 6 February 2013, however, we do not accept that that per se provides a basis for adjourning the hearing of the appeal. We do accept though that that confusion, combined with the shortness of time before the hearing and the fact that rather than the husband filing an appropriate application he entered into email correspondence in an attempt to have further documents put before the court, does provide a possible basis for the adjournment. What does persuade us though to adjourn the hearing is that it would not be in the interests of justice to prevent the husband from having the opportunity to place all relevant documents and submissions before the court. Any prejudice to the other parties and to the Independent Children’s Lawyer as a result of an adjournment can be overcome by an order for costs. We are also comforted by the circumstance that there needs to be a further hearing before the Full Court in any event to address the respondents’ applications for security for costs, and possibly to address other aspects of the appeal against the orders made on 27 November 2012.
As discussed with counsel, consequent upon this determination, we consider that the appropriate course is to make an order referring the matter back to the Appeals Registrar to conduct a further directions hearing with a view to again preparing the matter for hearing and listing the matter for hearing promptly. To assist the Appeals Registrar in that process we also determined to require each party if so advised to file and serve a draft appeal index prior to the directions hearing setting out the documents sought to be included in the appeal book or any supplementary appeal book for the purposes of the appeal against the orders of the trial judge made on 27 November 2012.
At that directions hearing we confirm that the Appeals Registrar should make any further procedural orders, including for the filing and serving of any further documents, to enable the respective applications of the respondents for security for costs to be heard at the same time as the appeal against the orders made on 27 November 2012.
As to what aspects of the appeal against the orders made on 27 November 2012 will be able to be heard and determined in the short term, we had initially thought that the entire appeal would be able to be heard. However, on reflection, and with apologies to Mr Lawson for not taking up his submission at the time, clearly there are some aspects of that appeal which cannot yet be heard and would more appropriately be heard at the same time as the appeal against the orders made by the trial judge on 22 August 2012 in EA 118 of 2012. For example, the appeal against the orders made by the trial judge providing for the husband to pay costs to the respondents and to the Independent Children’s Lawyer in relation to the trial before his Honour resulting in the orders made on 22 August 2012. It may be that there are other aspects of the appeal that are in that same category, but rather than address them now we would leave it to the Appeals Registrar to identify the same at the directions hearing. In order to assist this process it would also be convenient for the Appeals Registrar to conduct the further foreshadowed directions hearing in relation to the appeal in EA 118 of 2012 at the same time as she conducts the further directions hearing in EA 10 of 2013, and we understand that the Appeals Registrar is able to do that.
Costs
The respondents and the Independent Children’s Lawyer also sought an order for costs in relation to the effective adjournment of the hearing of the appeal against the orders refusing the stay. Those applications were opposed by the husband.
Consistent with our approach in relation to the question of costs earlier in these reasons for judgment, we consider it appropriate to reserve consideration of these applications to the hearing of the appeal against the orders made on
27 November 2012.
The application seeking an order for the provision of the transcript of the hearing before the trial judge culminating in his orders made on 22 August 2012
In his application in a case filed on 28 September 2012 in SYC 2145 of 2009 the husband sought an order that “the Court Order that the transcript [of the hearing before the trial judge] be produced and the parties have leave to access and photocopy the transcript”.
At the hearing before the trial judge on 27 November 2012, his Honour appropriately indicated that that was an application that should be heard and determined by the Full Court, and accordingly that application was effectively listed before us on 6 February 2013.
In support of that application we were told that the cost of obtaining the transcript is $26,000, and we were referred to paragraph 8 of the husband’s affidavit filed on 28 September 2012 in SYC 2145 of 2009 where he deposed that he was then unemployed and in receipt of Centrelink benefits, and he had no financial means to pay for the transcript. In addition, written submissions addressing this issue were filed on behalf of the husband on 30 January 2013 and 6 February 2013.
Neither the respondents nor the Independent Children’s Lawyer sought to be heard on this application, save and except in one respect which we will come to later in these reasons.
It is beyond doubt that this court has the power to order that the court provide a copy of a transcript of the proceedings to a litigant. For example, in Forbes & Bream [2008] FamCAFC 189, the Full Court said this:
34.The Family Law Act is silent on the question of the provision of transcript and provides no obligation, nor in our view any impediment, to the Court providing transcript in a particular case. Although Rules 22.23 and 22.24 [now Rule 22.18] place an obligation on the appellant (or cross-appellant) to provide transcript for insertion in the appeal book, the Court may dispense with the application of the Rules if warranted in a particular case. On one view this could mean simply that the requirement to provide transcript is waived but we do not consider the meaning to be necessarily so constrained.
35.If the interests of justice require it, and the appellant or cross-appellant or party seeking it cannot afford the cost of transcript, the Court may in the exercise of its discretion agree to provide the transcript of relevant parts to enable the appeal to proceed. In Fortnum & Fortnum (No 2) [2008] FamCAFC 73 Finn J described this as part of the “supervisory role of the Full Court”. We would add to her Honour’s explanation the “supervisory power of the Court” may necessarily, in a particular case, require the Court to have transcript to fulfil its statutory function under s 94(2) of the Family Law Act. Thus the Court hearing an appeal may order the provision of transcript as an exercise of its incidental powers.
36.We do not need to define the circumstances in which the discretion may be exercised. Suffice it to say that we doubt whether it would be exercised in anything other than exceptional cases. Furthermore, we consider that the vast majority of such cases will relate to parenting orders, where the necessity to arrive at a result in the best interests of the child may provide compelling reasons for transcript to be provided at the Court’s expense if the parties are impecunious.
It is also necessary to observe that limitations on the provision of transcript to the parties are required because the court does not have a fund available for this purpose, and nor is it provided for in the budget of the court. As was also said by the Full Court in Forbes & Bream (at 28) “[t]he cost of [providing transcript to the parties] would impinge on other necessary expenditure for the proper operation of the Court”.
As can be seen, in Forbes & Bream the Full Court indicated that it did not need to define the circumstances in which the discretion of the court to provide the transcript at its expense should be exercised, but the Full Court in Sampson & Hartnett(Provision of Transcript) [2010] FamCAFC 220 (at 16) detailed a non-exhaustive list of factors that may be relevant to be taken into account. That list is as follows:
(a)Whether the case is a financial or parenting case.
(b)Whether the whole transcript of [sic] part thereof is necessary for the determination of the appeal or part of the appeal.
(c)The likely cost of the relevant transcript and whether the applicant can afford all or part of the cost of the transcript.
(d)The proportionality of the cost of the transcript to the appellant’s anticipated costs in relation to the whole appeal, including the preparation of the appeal book(s).
(e)The prima facie merits of the appeal.
(f)Whether the question of providing a transcript can be left to the Full Court hearing the appeal.
(g)Any other relevant facts or circumstances.
In this case, which is both a financial and a parenting case, there was no attempt by the husband to address these or any other relevant facts or circumstances. The written submissions put to us in support of the application were that:
a)“[I]t will be impossible for the appeal to be heard and determined on its merits unless the Appeal Books contain the trial transcript.”
b)“It is not possible for counsel to prepare adequate written submissions in the appeal proceedings, or to refine the grounds of appeal, without first considering the trial transcript in the context of the exhibits and his Honour Justice Fowler’s findings on credit and on fact.”
c)“[T]his is an exceptional case where the interests of justice strongly militate towards the Court providing the Appellant Husband with the trial transcript.”
d)“The necessity for transcript to be available for the appeal in this very complex matter is obvious. The oral evidence cannot be known without the benefit of transcript. The written submissions of the parties cannot substitute for a record of the oral evidence. The circumstances of the appellant (both financial and in the result of the litigation) make this an exceptional case.”
In making these submissions, and also in making his oral submissions, there was no attempt by the husband’s senior counsel to take us through the grounds of appeal set out in the Notice of Appeal filed on 19 September 2012 in EA 118 of 2012 to identify why it was actually necessary for the transcript to be obtained; there was no attempt to address whether all of the transcript was required or only part of it; and there was no consideration of other viable options until we raised them.
Referring specifically to the oral submissions, there was some attempt to be specific, but in our view not specific enough. For example, Mr Neil put that there was “no doubt” that the appeal could not proceed without the transcript, that there were many issues of credit, that a number of the findings of fact were not open to his Honour, there were a number of areas where his Honour’s discretion miscarried, and there were certain matters not taken into account and overlooked by his Honour.
The necessity for all of the transcript to be obtained is not “obvious” in this case. There is no doubt that there was a lengthy hearing before the trial judge and that there were many issues for his Honour to consider, and he did so in his reasons for judgment comprising 993 paragraphs. However, it is those reasons for judgment, analysed in the context of each ground of appeal and the complaints made by the husband, that would determine the need for transcript. That exercise was not undertaken before us, albeit in this case, given the grounds of appeal which are relied upon, it could not be said that the need for transcript is readily apparent from a perusal of the same. We agree to a certain extent with the submission made on behalf of the wife that:
…the grounds of appeal are imprecise. They amount to no more than a catalogue of grievances with the trial judge’s findings of fact. There is no attempt made to particularise the alleged errors of law. Indeed, the grounds of appeal do not contain any assertion that the trial judge fell into error – they do not rise above a complaint by the Appellant Husband that he simply “did not like” the trial judge’s findings.
Certainly there are complaints directed to his Honour’s findings of fact, and to his findings as to credit, but simply to suggest that his Honour erred in his findings does not then translate into the need for the transcript in relation to those findings to be obtained.
Accordingly, we are not persuaded that we should exercise our discretion to provide all of the transcript of the hearing before his Honour, and we propose to dismiss the application. We are not satisfied that there are exceptional circumstances to justify expenditure by the court in obtaining the transcript, or that the interests of justice demand such expenditure.
As to other viable options, we raised two with the husband’s senior counsel; firstly, leave it to the Full Court when hearing the appeal to consider whether and what transcript is required to enable the appeal to be heard and determined, or secondly, permit the husband and his legal representatives to listen to the audio recordings of the hearing and identify those parts of the transcript which are said to be relevant and necessary for the purposes of the appeal, and then make a further application to the court if so advised.
The husband’s senior counsel indicated that the first option would not provide an adequate or appropriate alternative in this case, but with the second, if the husband’s application was dismissed then this is an option that he would want to take up. In the circumstances we are content to make that order.
We referred earlier in these reasons to the fact that the other parties did have input to one aspect of this issue, and that is they each sought that they also be permitted to listen to the audio recordings for the purposes of the appeal. Again, in the circumstances of this case, we are content to accede to that request and make the appropriate order.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Stevenson JJ) delivered on 8 February 2013.
Associate:
Date: 8 February 2013
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