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…
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- Barbir & Erickson [2023] FedCFamC1A 187
- Case
- [2023] FedCFamC1A 187
- Decision Date
CaseChat Overview and Summary
The court examined the rules and precedents governing the provision of transcripts in appeals. It noted that while the appellant is required to provide and fund the provision of transcript(s) under the Rules, the Rules do not provide for the court to do so. The court emphasised that the discretion to order the court to assume responsibility for providing the transcript is unlikely to be exercised except in exceptional cases. The court considered the factors relevant to exercising its discretion, including the necessity of the full transcript for the appeal and the availability of partial transcripts. The court found that the evidence of the Court Child Expert was particularly relevant to certain grounds of appeal, but the other grounds did not require the full transcript.
The court concluded that the appeal related to the parenting arrangements for a child who had been living with the applicant since separation. It noted that the final order confirmed the child's living arrangement, which effected a permanent change. The court also noted that the transcript for the first three days of the trial was available, covering the primary cross-examination of each party and the evidence relevant to some of the grounds of appeal. However, the evidence of the Court Child Expert was relevant to certain grounds of appeal, and the court found that the exceptional circumstances necessary to warrant the court providing funds for the outstanding transcript did not exist.
The court discharged Orders 6 and 7 of the orders made by the Appeal Judicial Registrar on 25 October 2023, in so far as they required the appellant to obtain and file further transcript of the proceedings before the primary judge, save and except the transcript of the evidence of the Court Child Expert. The court also extended the time for compliance with Order 7 to 22 November 2023 and ensured that the appeal would not be deemed abandoned under r 13.22(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Orders
Orders of the court
NAA 270 of 2023
NCC 2284 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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.