Balfour & Ferber

[2024] FedCFamC1A 179

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Balfour & Ferber [2024] FedCFamC1A 179

Appeal from:	Balfour & Ferber (No 2) [2024] FedCFamC2F 1162
Appeal number:	NAA 225 of 2024
File number:	MLC 6089 of 2021
Judgment of:	TREE J
Date of judgment:	11 October 2024
Catchwords:	FAMILY LAW – APPEAL – Application in an Appeal – Where the father seeks relief from the obligation to obtain the transcript of the primary proceedings – Where the father is currently incarcerated – Where with one exception the transcript would not inform the father’s grounds of appeal – Where the father should not be deprived of the opportunity to prosecute his appeal because he cannot obtain the transcript – Where the application is not opposed – Application granted.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.19, 13.22
Number of paragraphs:	16
Date of hearing:	10 October 2024
Place:	Cairns (via video link)
The Appellant:	Litigant in Person
The Respondent:	Litigant in Person

ORDERS

NAA 225 of 2024
MLC 6089 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR BALFOUR

Appellant

AND:

MS FERBER

Respondent

ORDER MADE BY:	TREE J
DATE OF ORDER:	10 OCTOBER 2024

ON 10 OCTOBER 2024 THE COURT ORDERED BY CONSENT THAT:

1.The requirement for the appellant to obtain transcript of the proceedings of 16 August 2024 is dispensed with, such that Orders 2 and 3 of the orders made 30 September 2024 are discharged.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Balfour & Ferber has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

TREE J:

1. On 26 August 2024 a judge of the Federal Circuit and Family Court of Australia (Division 2) dismissed a Contravention Application filed on 3 May 2024 by Mr Balfour (“the father”). That application contended that Ms Ferber (“the mother”) had breached final parenting orders made on 21 October 2022 in some 68 respects, albeit only five counts were actually proceeded with.

2. By Notice of Appeal filed 3 September 2024, the father contends that in dismissing the Contravention Application, the primary judge erred, and if the appeal succeeds, seeks substantial variation to the underlying parenting orders.

3. On 30 September 2024 an Appeal Judicial Registrar ordered that by 21 October 2024 the father produce transcript of the hearing before the primary judge, in default of which the appeal would be taken to be abandoned. Now by Application in an Appeal filed 30 September 2024, the father seeks to be excused from providing the transcript of the hearing before the primary judge (“the application”).

4. At the hearing of the application, the mother did not oppose the order sought by the father, which I pronounced for reasons to follow. These are those reasons.

5. The 21 October 2022 orders relevantly gave the mother sole parental responsibility for the parties’ now 11 year old only child, who would live with her. The living arrangements, at least until 2024, were a foregone conclusion, as the father was then incarcerated, and not eligible for parole until about mid-2024.

6. Order 5 provided as follows:

   5.The child shall spend time with [the father], conditional upon the father not making any reference during such time to the child regarding the child’s care arrangement, and not denigrating the mother, as follows:

   (a)via telephone on Monday and Thursday each week between 5.00pm and 5.30pm;

   (b)via one (1) letter per week; and

   (c)via one (1) video call every 3 months to occur on a Saturday or Sunday as can be accommodated by [Town C Correctional Facility].

7. Before the primary judge, the father contended some 68 breaches of Order 5 by the mother, although the 5 counts proceeded with were all alleged breaches of Order 5(a). As to those, the primary judge said:

   10       The counts are that:

   (a)That on 25 January 2024 the respondent mother did not facilitate a phone call between the father and child between 5pm and 5.30pm without reasonable excuse.

   (b)That on 1 February 2024 the respondent mother did not facilitate a phone call between the father and child between 5:00pm and 5:30pm without reasonable excuse.

   (c)That on 8 February 2024 the respondent mother did not facilitate a phone call between the father and child between 5:00pm and 5:30pm without reasonable excuse.

   (d)That on 15 February 2024 the respondent mother did not facilitate a phone call between the father and child between 5:00pm and 5:30pm without reasonable excuse.

   (e)That on 22 February 2024 the respondent mother did not facilitate a phone call between the father and child between 5:00pm and 5:30pm without reasonable excuse.

   …

   18The applicant father relies on data with respect to telephone call logs which shows several attempted calls between 5:00pm and 5:30pm. According to the phone call logs, those outgoing calls were not answered. The applicant father cannot establish, based on the evidence before me, that the calls were made to the respondent mother’s phone number. Given this, the respondent has no case to answer. For these reasons, the application must be dismissed.

8. However, the father in prosecution of his appeal must obtain the transcript of the proceedings below. Rule 13.19(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), relevantly provides:

   Preparation of appeal book and obtaining transcript

   …

   (4)The appellant or, if so ordered, the cross-appellant is responsible for obtaining any transcript of the hearing relevant to the appeal or cross-appeal.

   (Emphasis added)

9. In default of compliance, r 13.22 of the Rules then deems the appeal to be abandoned:

   Failure to file appeal book or transcript by due date

   …

   (2)If the appellant fails to file the transcript by the date ordered, the appeal is taken to be abandoned.

10. As I have indicated on 30 September 2024 an Appeal Judicial Registrar ordered that the father produce digital transcript of the contravention hearing by 21 October 2024.

11. In his affidavit filed the same day the father says:

    5.As [the father] is self-represented and currently incarcerated he does not have the financial means to obtain and provide a digital transcript of the final hearing before [the primary judge] on 16 August 2024 to the court.

    (Affidavit of the father filed 30 September 2024)

12. Significantly the father does not seek transcript be provided by the court, but rather a general dispensation with it being provided at all.

13. Returning to his appeal, the grounds of appeal are as follows:

    1.The learned Judge gave insufficient consideration to the evidence submitted by [the father] as a whole in support of the contravention application. Further evidence was offered to the Judge during the hearing by [the father] to assist in the allegations, however the method of delivery was rejected by the Judge.

    2.Being aware of [the father’s] circumstances and unsuccessful subpoena requests to obtain evidence, the Judge could have used her discretionary powers to stand down or adjourn the matter giving [the father] procedural fairness. The primary evidence submitted by [the father] to prove the contravention by the respondent could have been re-obtained by [the father] without redaction with the issuing of a subpoena. Without the redacted data the contravention allegation made by [the father] would have been proven without doubt.

    3.[The father] alleges at no time did the Judge consider the best interests of the child. [The father] claims that on the balance of probabilities the alleged contravention was proven. The evidence supports the fact that [the father] had not spoken with his son since January 2024 however this was not addressed at any time during the hearing. The Judge has not considered the long-term damage the alleged contravention by the respondent is causing the child.

    4.[The father] claims that the Judge misinterpreted the final parenting orders allowing the father to write one (1) letter per week to his child. [The father] believes at the time of making the final parenting orders the Judge intended to provide the father with the ability to write to his child. The Judge was wrong in her interpretation of the order and in determining that the mother was not obligated to provide the child with the letters sent by the father.

14. Some of those (Grounds 2, 3 and 4) can clearly be prosecuted without transcript, although Ground 1 is probably in a different category, as in part it appears to rely on events at the hearing itself.

15. As I explained to the father at the hearing of the application, it is a matter for him if he wishes to run an appeal without transcript, and in doing so is prepared to run the risk that it might not be possible for him to fully argue one or more grounds without it. Certainly, as regards Grounds 2, 3 and 4 it would be unjust to, in effect, deprive the father of any chance to argue them, merely because transcript, which does not seem to inform them, could not be obtained because of his current circumstances.

16. The requirement for the father to obtain a transcript of the proceedings before the primary judge was therefore dispensed with.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree.

Associate:

Dated:       11 October 2024