Barlow & Sellers (No 2)
[2022] FedCFamC1A 62
•12 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Barlow & Sellers (No 2) [2022] FedCFamC1A 62
Appeal from: Barlow & Sellers [2021] FedCFamC1F 327 Appeal number(s): NAA 15 of 2022 File number(s): ADC 3611 of 2012 Judgment of: ALDRIDGE J Date of judgment: 12 May 2022 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Where the appellant seeks for the Court to purchase the transcript for the purpose of her appeal – Where the proposed grounds of appeal are not strongly arguable – No exceptional circumstance to justify the Court funding the provision of transcript – Where the requirement for the appellant to obtain transcript be dispensed with. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.19(4) Cases cited: Forbes v Bream (2008) 222 FLR 96; [2008] FamCAFC 189
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Sampson & Hartnett (2013) FLC 93-542; [2010] FamCAFC 220
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs: 23 Date of hearing: 5 May 2022 Place: Sydney (via video link) The Appellant: Self-represented litigant Counsel for the Respondent: Mr Roberts Solicitor for the Respondent: Thomson & Associates Counsel for the Independent Children’s Lawyer: Ms Olsson Solicitor for the Independent Children’s Lawyer: Silkwoods Chambers ORDERS
NAA 15 of 2022
ADC 3611 of 2012FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BARLOW
Appellant
AND: MR SELLERS
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
12 MAY 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 12 April 2022 is dismissed.
2.Orders 2, 3 and 4 made by the appeal registrar on 7 March 2022 are discharged.
3.Any requirement under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) for the appellant to file in the appeal, a transcript of the proceedings before the primary judge, is dispensed with.
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 Barlow & Sellers has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
By an Application in an Appeal filed on 12 April 2022, the applicant seeks an order that the Court obtain the transcript of the hearing the subject of her appeal.
The applicant and the respondent have two children who were born in 2010 and 2012. On 20 December 2021, a judge of the Federal Circuit and Family Court of Australia (Division 1) ordered that the children live with the respondent who was to have sole parental responsibility for them. The children are not to spend any time with the applicant, save for some limited and prescribed Skype communications.
The applicant filed a Second Further Notice of Appeal on 8 March 2022 and on 7 March 2022, amongst a number of other orders, an appeal registrar directed the applicant to file a consolidated digital transcript on or before 12 April 2022.
The applicant submitted that the Court should obtain the transcript on her behalf because she had been advised that it was the “usual appeal custom and process” and because the Court prepared the electronic Appeal Book on behalf of the applicant, it is therefore also obliged to provide the transcript.
Neither of these submissions is correct.
Rule 13.19(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) requires the appellant to obtain the transcript of the hearing relevant to the appeal, regardless of who prepares the Appeal Book.
The Court is not funded to provide transcript for appellants, however it is clear from a number of authorities that the Court can provide the transcript if the interests of justice require it; but normally, that would only occur in exceptional circumstances, see Forbes v Bream (2008) 222 FLR 96 at [36] and Sampson & Hartnett (2013) FLC 93-542 at [14] and [83]. In the latter case, the Court provided some guidance as to the factors that the Court may take into account in determining whether or not to provide the transcript, namely:
16. …
(a) Whether the case is a financial or parenting case.
(b) Whether the whole transcript or 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.
Here, the appeal is from a parenting order which effected a significant change in the children’s lives.
The hearing occupied 11 days so the transcript required is extensive. However, it is not clear whether all of the transcript would be required for the hearing of the appeal. For example, Ground 4 alleges that the primary judge denied procedural fairness to the applicant by preventing her from questioning expert witnesses using evidence relied upon from the files of the Department of Child Protection and by refusing to permit the applicant from presenting documents to an expert witness for questioning. Obviously, only the relevant parts of the transcripts would be required for that purpose.
Similarly, Ground 5, which asserts bias and an unfair refusal of a motion to dismiss a Family Assessment, would not seem to require all of the transcript. However, it may be said that Grounds 1 and 2, which contend that the primary judge made findings on important issues not supported by the evidence, and that her Honour failed to consider all of the evidence, may well require much more of the transcript for the point to be established.
In her evidence in support of the application, the applicant did not give any information as to her financial position or the costs of obtaining the transcript. The applicant did inform me however that she has no money having spent $75,000 on the hearing, although according to the reasons for judgment the applicant had acted for herself. The applicant states she works
20–40 hours a fortnight, earning between $750 and $1,000 per fortnight. I accept that she cannot readily afford to buy the transcript.
It is difficult attempting to assess the merits of an appeal when the only material before the Court are the primary judge’s reasons and the Second Further Amended Notice of Appeal.
The grounds of appeal do not identify the findings on important issues which are said not to be supported by the evidence.
As to the ground that asserts that the primary judge failed to consider evidence of family violence and its impact on the applicant and the children, evidence of investigations of the father for elder abuse and psychiatric evidence that he was “lying”; the primary judge recorded those allegations at [113] and [116]. The primary judge was not satisfied that the children were at risk of being subjected or exposed to family violence in the care of the father (at [325]–[326], [343] and [420]).
Thus, whilst the outcome may not be that for which the applicant contended, there are likely to be some difficulties facing her in successfully submitting that these matters were not considered.
Finally, there is no reference in the primary judge’s reasons to any application that she disqualify herself from the proceedings. The inference is that there was none. Whilst this does not prevent a ground asserting apprehended or actual bias from succeeding, it does make it somewhat more difficult, as failing to make a timely application for recusal is a basis for refusing such an application (Vakauta v Kelly (1989) 167 CLR 568).
Finally, it is clear from the grounds of appeal at least, that the applicant asserts that the primary judge was actually biased. That is a difficult ground to establish and would require the applicant to demonstrate that the primary judge’s mind was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]).
I am not satisfied that it can be said that the proposed grounds of appeal are strongly arguable.
I am not satisfied that this is an exceptional case which would, in the interests of justice, require the Court to obtain the transcript of the hearing on behalf of the applicant. Therefore, the application will be dismissed.
I will however dispense with the requirement for the applicant to adduce the appeal transcript. It will be a matter for her to determine whether she will be able to prosecute any of the grounds of the appeal adequately without it.
At the hearing of the application, the applicant also complained about the inclusion within the Appeal Book of the Independent Childrens Lawyers’ Case Outline which formed part of the documents before the primary judge. The applicant said it should be removed from the Appeal Book because she did not receive it at the hearing and because it was not originally included pursuant to the orders made on 7 March 2022.
In circumstances where the applicant herself included the Case Outline as Item 38 in her Draft Appeal Index, and where the appeal registrar has been satisfied that the applicant in fact did receive the document at the time of hearing, there is no basis for removing it from the Appeal Book.
Finally, I note that by way of email sent to the parties on 21 April 2022, the appeal registrar advised the parties as to the steps to be taken if there is an application to adduce further evidence. Contrary to the expectation of the applicant, that proposed further evidence is not included in the Appeal Book.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 12 May 2022
0
4
1