Blatch & Blatch

[2022] FedCFamC1A 228

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Blatch & Blatch [2022] FedCFamC1A 228

Appeal from:

Blatch & Blatch (No 5) [2022] FedCFamC1F 651

Appeal number:

NAA 215 of 2022

File number:

SYC 1613 of 2021

Judgment of:

AUSTIN J

Date of judgment:

23 December 2022

Catchwords:

FAMILY LAW – APPEAL – Application in an Appeal – Application for an extension of time to file the transcript, or alternatively, that it be procured at the Court’s expense – Where the proposed extension would necessarily entail the appeal hearing being vacated – Where the time for compliance has already been extended once – Where the appellant has failed to demonstrate a case for the Court to procure the transcript at its cost – Where the appellant shall be granted a short further extension of time within which to file the transcript – Where the appellant is relieved from consequences of a failure to file the transcript – Application otherwise dismissed.

Legislation:

Family Law Act 1975 (Cth) Pts VII, VIII

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.19, 13.22

Cases cited:

Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220

Number of paragraphs:

31

Date of hearing:

23 December 2022

Place:

Newcastle (via video link)

The Appellant:

Litigant in person

Solicitor for the Respondent:

Landers & Rogers

ORDERS

NAA 215 of 2022
SYC 1613 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR BLATCH

Appellant

AND:

MS BLATCH

Respondent

order made by:	AUSTIN J
DATE OF ORDER:	23 DECEMBER 2022

THE COURT ORDERS THAT:

1.The time for compliance with Order 4 made on 30 November 2022 is extended until 4.30 pm on Wednesday 4 January 2023, in default of which 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), but will then be prosecuted by the appellant without the benefit of transcript.

2.Otherwise:

(a)the Application in an Appeal filed by the appellant on 21 December 2022 is dismissed;

(b)the Response to an Application in an Appeal filed by the respondent on 22 December 2022 is dismissed; and

(c)the parties shall bear his and her own costs of the interlocutory dispute.

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 Blatch & Blatch has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. This appeal, brought by the appellant from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1), is listed for hearing before the Full Court some six weeks hence on Wednesday 1 February 2023.

2. On 21 December 2022, the appellant filed an Application in an Appeal seeking orders in these terms:

   1.Seeking an extension of time to provide a transcript to the 14th February as requested in my initial request for extension so as to ensure a lack of affordability does not prejudice the applicant from Justice

   2For this matter to be determined by a Judge.

   3.For the Judge to determine following oral submissions the merit in ordering a review of (P) SYC 1613/2021 and the conduct of practitioners for both parties, including deliberate delays, part heard hearings, failure to allocate single experts in a timely fashion, ignorin

   4.The current dates for appeal be vacated, to be set down for a future date and to ensure this complex case affords the self-represented applicant reasonable time to deliver what will be a complex and extensive appeal of both Parenting and Property.

   5.For the Judge to order a Judicial Review of the dates, 21/4/21, 13/5/21, 30/11/21 as well as the numerous adjournemtns [sic] in between.

   6.For the Judge to order a Judicial Review of court video at the outset of the final hearing and facial body expressions between [the primary judge] and my solicitor, coupled with dialogue concerning Property revaluations. Further to review why the allocated five days was diminished o four without warning and that My counsel said I can just appeal. For the Judge to order to compensate the appellant with discretion and provision of the transcript [sic] of these First Instance Hearing.

   (As per the original) (Emphasis added)

3. The appellant wanted the application determined in open court and so, due to the imminent vacation period, the application was listed for urgent determination today (23 December 2022).

4. In the meantime, the respondent filed a Response opposing the relief sought by the appellant and seeking a costs order against him.

5. These reasons explain why the application is dismissed in most, but not quite all, respects.

   Context

6. It is helpful to explain the circumstances in which this application must be determined.

7. The appealed orders were made on 31 August 2022. The orders concluded numerous disputes between the parties in respect of their children, their property, and the appellant’s liability for child support.

8. The appeal was filed on 28 September 2022, but the appeal was brought from only four of the 36 orders made. Those orders pertain to the appellant’s liability to pay one-half of the children’s private school fees (Order 24), the credit of a lump sum payment due by the appellant to the respondent against the appellant’s child support liability (Order 29), the appellant’s liability for numerous payments to the respondent (Order 30), and the sale of a parcel of real property (“the real property”) in default of the appellant’s payments to the respondent (Order 33).

9. The grounds of appeal upon which the appellant moves contend, in summary, that the primary judge erred:

   (a)by not accepting updated valuation evidence in respect of the real property (Ground 1);

   (b)by ordering the appellant to pay a lump sum of $186,238 to the respondent by way of child support (Ground 2); and

   (c)in evaluating the respondent’s contributions when assessing the parties’ financial entitlements under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) (Ground 3).

10. Evidently, no part of the appeal concerns the parenting orders made under Pt VII of the Act.

11. On 2 November 2022, the appeal registrar ordered the appellant to file transcript and his Summary of Argument by 23 November 2022.

12. On 23 November 2022, the appellant applied for more time to file the transcript and his Summary of Argument, which application was subsequently granted by the appeal registrar. The appellant was given until 21 December 2022 to file the transcript and until 4 January 2023 to file his Summary of Argument.

13. The appeal was then fixed for hearing on 1 February 2023, consonantly with the revised timetable set by the appeal registrar.

14. The current application represents a second request by the appellant to extend time for him to file the transcript and, if granted, would necessitate the date for the appeal hearing being vacated.

15. The affidavit filed by the appellant on 21 December 2022 presumes to call to aid the affidavit he formerly filed in support of his first application to extend time. The appellant deposed:

    2.This Affidavit is an extension to the affidavit dated 23/11/22 for an application in appeal and should be read alongside this affidavit.

16. Nothing within the former affidavit could legitimately help prosecute the current application to extend time because such evidence resulted in the interlocutory relief granted to the appellant the first time on 30 November 2022.

17. Nothing within the appellant’s current affidavit provides the evidentiary foundation for the relief now sought by him for a second time. The appellant deposed:

    9.It will be in my appeal that the matter and expert reports and experts themselves were interfered with by solicitors and I was advised by Law Firm N they were told by the court to supress Subpoeana Material of a Family Therapist. That one error of the Primary Judge also incorrectly allocates said therapists advice of Pscyho-Therapy for the mother, as it was to both parents which it was not.

    …

    11.It is my perception the case was manipulated to ensure motherly bias was a result and that the children would not be removed from her care and to achieve this, I became a target and sacrificial lamb of which I will be seeking full retribution both in the family court and failing this, through civil action.

    …

    13.My appeal will be extensive and should not be rushed. I am self-represented to ensure management of proceedings does not pervert the course of Justice and require time to ensure a Full Court hears this matter without omission [sic] of facts.

    (As per the original) (Emphasis added)

18. Whatever the appellant may have been told by “Law Firm N” (at [9]), it is inherently unlikely any staff member of the Court would have told a staff member of Law Firm N to suppress relevant evidence in the proceedings before the primary judge. In any event, this appeal does not concern the parenting orders made by the primary judge. It does not comprise a challenge to “both [p]arenting and [p]roperty” orders as the application wrongly alleges. The complaint of “motherly bias” in relation to the parenting orders is irrelevant to disposition of the appeal. No ground of appeal alleges bias or the denial of procedural fairness. Moreover, no complaint is made in the appeal about the nature of the evidence adduced at the trial, save in relation to the exclusion of expert valuation evidence related to only the financial cause.

19. The appeal is neither “complex” nor “extensive”, because it comprises only three discrete grounds which concern only four of 36 orders. The appeal is rather narrow.

20. The appellant cannot reasonably contend he is being rushed, which is to say nothing about the curious situation of an appellant complaining of his appeal being given too much attention too soon. The appeal was filed in September 2022, the appellant has already been granted one extension of time within which to file transcript and his Summary of Argument, and the appeal is listed for hearing in February 2023. By the time of hearing, the appellant will have had four full months to get ready.

    Disposition

21. The appellant sought that his application be determined by a judge (proposed Order 2). It is.

22. No good reason is advanced for why the appeal hearing on 1 February 2023 should be vacated. It should not be. The application for it to be vacated is dismissed (proposed Order 4).

23. The appellant has already been indulged once by an extension of time within which to file transcript. Presently, the appellant has until 21 December 2022 to file transcript, which date has already passed. This application was filed before the time for filing the transcript expired so the appeal should not now be deemed abandoned pursuant to operation of r 13.22(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and the appellant is relieved of that consequence. He shall have an extension until Wednesday 4 January 2023 to file the transcript, which is the date by which he must file his Summary of Argument. The application to extend time beyond that until 14 February 2023 is dismissed (proposed Order 1).

24. The applications for the remaining orders (proposed Orders 3, 5 and 6) were meaningless until clarified by the appellant during oral submissions.

25. The application for the “review” of the entirety of the original proceedings, including the conduct of legal practitioners, was clarified by the appellant to be a forensic review of the proceedings, quite separate and distinct from this appeal (proposed Order 3). There is no power to make any such order. The application for it is dismissed.

26. The application for “judicial review” of orders made and adjournments granted during the original proceedings in 2021 (proposed Order 5) is similarly incompetent. This appeal lies from the final orders made by the primary judge in August 2022; not the interlocutory and procedural orders made along the way. To the extent that the appellant desires to review, or alternatively appeal from, other orders formerly made in the proceedings by registrars or judges, the time for any review application or appeal has long since passed. The application is dismissed.

27. In respect of the last application (proposed Order 6), the appellant clarified that it should be interpreted as being only a request for the Court to procure, at its expense, the transcript of the hearing before the primary judge in August 2022. Explained in that way, it should be regarded as an application made alternatively to the earlier application for him to be given more time to obtain and file the transcript.

28. The obligation to provide transcript for the appeal falls to an appellant under rr 13.19(4) and 13.22(2) of the Rules. Unless the interests of justice demand it, an appellant should neither be relieved of that obligation nor the financial burden of its acquisition shifted to the Court (Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 at [12]–[16]). Numerous considerations influence any decision about whether such relief should be granted to an appellant, including these:

    (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); and

    (e)the prima facie merits of the appeal.

29. Referring to the most salient of those considerations: this appeal relates only to the financial and child support orders, not the parenting orders; the appellant did not articulate any particular necessity of the transcript to the appeal; and, while the appellant made assertions of his difficult financial circumstances, he adduced no confirmatory evidence. It is not possible to say anything about the prima facie merits of the appeal or the proportionality of the cost of transcript.

30. The appellant has failed to demonstrate a case for the Court to procure the transcript at its cost. However, as an indulgence, the appellant can make his own choice about the necessity of the transcript in the prosecution of his appeal. If he believes he needs it, he will be given a short extension of time within which to file the transcript. If he fails to file the transcript within the additional time allowed, he will be relieved of the disadvantage of the appeal being deemed abandoned under r 13.22(2) of the Rules, but he will then need to prosecute his appeal without the transcript. The consequences which might flow from that eventuality will be of his own making.

31. The respondent did not pursue her foreshadowed application for costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       23 December 2022