Barbir & Erickson
[2023] FedCFamC1A 187
•1 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Barbir & Erickson [2023] FedCFamC1A 187
Appeal from: Erickson & Barbir (No 2) [2023] FedCFamC2F 921 Appeal number: NAA 270 of 2023 File number: NCC 2284 of 2021 Judgment of: CHRISTIE J Date of judgment: 1 November 2023 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Provision of transcript – Where the applicant seeks that an Order requiring her to obtain a transcript of the original proceedings be vacated or, in the alternative, she be relieved from the obligation to provide a transcript – Appeal from final parenting orders – Where the transcript of the first three days of a five day hearing are already in the Court’s and parties’ possession – Where it is necessary for the appellate court to have the transcript of the oral evidence of the Court Child Expert – Order relieving the applicant from obtaining the outstanding transcript save for the transcript of the Court Child Expert’s oral evidence – Where exceptional circumstances do not exist to warrant the court providing funds for the outstanding transcript. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.31, 13.19, 13.22 Cases cited: Forbes & Bream [2008] FamCAFC 189
Peake & Cousins (No 2) [2019] FamCAFC 95
Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220
Number of paragraphs: 25 Date of hearing: 1 November 2023 Place: Sydney For the Applicant: Litigant in person Solicitor for the Respondent: Tony Cox Lawyers & Conveyancers Solicitor for the Independent Children's Lawyer: Hannaway Lawyers ORDERS
NAA 270 of 2023
NCC 2284 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BARBIR
Applicant
AND: MR ERICKSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
1 NOVEMBER 2023
THE COURT ORDERS THAT:
1.Orders 6 and 7 of the orders made by the Appeal Judicial Registrar on 25 October 2023 are discharged in so far as they require the appellant to obtain and file further transcript of the proceedings before the primary judge, save and except transcript of the evidence of the Court Child Expert.
2.The appeal will not be deemed abandoned under r 13.22(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
3.The time for compliance with Order 7 is extended to 22 November 2023.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Barbir & Erickson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an Application in an Appeal filed by the applicant mother (hereafter “the applicant”) who is the appellant in appeal NAA270/2023. The application seeks that the applicant be relieved of the requirement to provide part of the transcript of the trial and in the alternative seeking that the Court provide the transcript.
Both the respondent to the appeal and the Independent Children’s Lawyer (“ICL”) opposed the application.
The applicant’s appeal lies against a final parenting order by a judge of the Federal Circuit and Family Court of Australia (Division 2) made on 31 August 2023.
The parenting orders of 31 August 2023 provided for the only child of the parties to live with the respondent and spend supervised time with the applicant.
On 25 September 2023 the applicant filed a Notice of Appeal which purports to contain 16 grounds of appeal. The appeal is not yet listed for hearing before a single judge of the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction.
On 25 October 2023 procedural orders were made by the Appeal Judicial Registrar which relevantly provided:
5. It is noted:
5.1.The Court is in possession of transcript of the hearing before Judge […] on 1, 2 & 3 February 2023;
5.2.Transcript of the hearing before Judge […] on 1 & 2 June 2023 remains outstanding (“the outstanding digital transcript”).
6.The appellant obtain the outstanding digital transcript from the Court’s authorised provider in accordance with the settled appeal index set out above …
7.On or before 4.30pm on Wednesday, 15 November (“the due date”) the appellant file and serve the outstanding digital transcript as follows:
Filing with the National Appeal Registry Sydney
7.1. Email to the address […]:
7.1.1. The outstanding digital transcript.
Serving the Respondent and the Independent Children’s Lawyer
7.2. Email to the respondent and the Independent Children’s Lawyer:
7.2.1. The outstanding digital transcript.
8.Pursuant to rule 13.22 of the [Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)] the appeal will be taken to be abandoned if the appellant fails to file the outstanding digital transcript by the due date.
The Application in an Appeal filed 26 October 2023 seeks that Order 6 be vacated and although not explicitly the subject of the application, the applicant’s affidavit says that she is seeking the Court provide the outstanding transcript being that dated 1 and 2 June 2023.
The Application in an Appeal explicitly seeks that the applicant be relieved from the obligation to provide such transcript but in the alternative, her affidavit canvasses her providing further transcript limited to the evidence of the Court Child Expert.
THE LAW
Rule 13.19 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides in part:
(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.
Rule 13.22 of the Rules provides in part:
(2)If the appellant fails to file the transcript by the date ordered, the appeal is taken to be abandoned.
The relevant considerations as to whether the Court will exercise its discretionary power to order the provision of transcript for a party was discussed by Austin J in Peake & Cousins (No 2) [2019] FamCAFC 95 at [17]:
17. Despite some past reservations about this Court’s power to order the provision of transcript for a party (WJD & TEK (1998) 72 ALJR 1323; Forbes & Bream (2008) 222 FLR 96 at [30]-[34]), the Court has proceeded on the basis that it will do so in exceptional cases (Forbes & Bream at [35]-[36]). The considerations which will influence whether such an order might be made in the exercise of discretion have been identified and include (see Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 at [16]):
(a) Whether the case is financial or child-related;
(b) Whether the whole or only part of the transcript is integral to the appeal;
(c) Whether the appellant can defray any part of the transcript cost;
(d) The proportional cost of the transcript to the anticipated cost of the appeal;
(e) The prima facie merit of the appeal; and
(f) Whether the Full Court hearing the appeal should make the decision about transcript.
A complete transcript may not be necessary for the prosecution of an appeal: Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 (“Sampson”) at 87,170 [15].
Any relevant fact or circumstance other than those already identified above can be considered as a factor in the exercise of the court’s discretion: Sampson at 87,171 [16].
CONSIDERATION
As is clear from the above discussion of the law the Rules require an appellant (or where relevant a cross-appellant) to provide and fund the provision of transcript(s) in an appeal. Those same Rules contain no provision by which the Court is to provide transcript(s). That said, the Rules can always be dispensed with where it is appropriate: r 1.31 of the Rules.
The respondent’s solicitor opposed the application but the submissions were directed only to matters of cost. The respondent opposed any order which would require him to meet the costs of transcript.
The ICL submitted that the transcript was necessary for the appeal but did not further extrapolate on this submission.
The decision about how the appeal proceeds and whether the requirement for provision of transcript by the appellant should be dispensed with in whole or part and whether the court should provide transcript are all discretionary matters. The exercise of that discretion is at large but has generally been governed by the considerations such as are set out in Sampson above. The decision in Sampson cited Forbes & Bream [2008] FamCAFC 189 at [36] where it was emphasised that the discretion to order that the court assume responsibility for provision of transcript was unlikely to be exercised in “anything other than exceptional cases.”
It should first be noted that the appeal relates to the parenting arrangements for a child who was living with the applicant from the times of the parties’ separation (when the child was eight months old) until the making of an interim order on 23 December 2021 (when she was seven years old). The final order, the subject of the appeal, confirmed that living arrangement and accordingly effected a permanent change to the child’s long-term living arrangements.
The next relevant factor which requires consideration is whether the transcript is key to the disposition of the appeal. In that context it is important to understand that the court has made available to the parties the transcript for the first three days of the trial. Those days contain the primary cross-examination of each of the parties.
Ground 1 as presently drafted would require an analysis of day two of the evidence and hence is covered by the available transcript. It is not controversial that the evidence of the appellant’s brother was not ultimately read and the appellant may advance the argument that the trial judge placed inappropriate weight on it without resort to transcript.
Grounds 2, 3, 5, 6, 7, 10, 11 and 13-16 do not on their face raise matters which would be addressed by the outstanding transcript.
It is arguable that the evidence of the Court Child Expert (both the report and the oral evidence) is relevant to the mother’s appeal: in particular Ground 4 and perhaps to a lesser extent Grounds 8-9 and 12. The mother accepted that this was so and submitted in the alternative that if this Court was not minded to make the orders relieving her of the obligation to file the remainder of the transcript she would attend to filing of the evidence of the Court Child Expert.
Turning then to other relevant matters, I am unable to express a concluded view about the merits of the appeal but am able to find that the appeal is not one which could be classified as entirely lacking in merit.
On balance I have formed the view that it is appropriate that the appellate court have the benefit of the transcript of the oral evidence of the Court Child Expert and that the applicant be otherwise relieved of the obligation to provide transcript for the appeal. I accept that the applicant’s financial circumstances are such that paying for the whole of the outstanding transcript would impose a significant financial burden on her and in that regard I note her responsibility for the care and support of the three children who live with her and obligation to pay child support in respect of the child the subject of these proceedings. The mother was previously in receipt of a grant of legal aid. She is in employment one day per week and otherwise in receipt of a parenting payment.
The mother indicated that she was able to prosecute her appeal absent the missing transcript and no other party made a submission that they themselves sought that the transcript be obtained to themselves prosecute or defend the appeal and accordingly I find that there are not exceptional circumstances such as to warrant the Court providing funds for the further transcript. Accordingly, the mother should be permitted to prosecute her appeal in reliance upon the transcript of the first three (3) days and the further evidence of the Court Child Expert.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 1 November 2023
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