Bradford and Donnellan - [2018] FamCAFC 191

FAMILY COURT OF AUSTRALIA

BRADFORD & DONNELLAN

[2018] FamCAFC 191

FAMILY LAW – APPLICATION IN AN APPEAL – Provision of transcript – Whether there are exceptional circumstances that justify the Court providing the transcript – Applicant’s financial circumstances – Application dismissed.

Finch & Shibo (No 2) [2016] FamCAFC 108
Sampson & Hartnett (2013) FLC 93-542; [2010] FamCAFC 220

APPLICANT:

Mr Bradford

RESPONDENT:

Ms Donnellan

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC

4829

2015

APPEAL NUMBER:

2018

DATE DELIVERED:

24 September 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

24 September 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

9 July 2018

LOWER COURT MNC:

[2018] FCCA 1822

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Maitland solicitor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

The Application in an Appeal filed on 14 September 2018 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bradford & Donnellan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 96 of 2018
File Number: PAC 4829 of 2015

Mr Bradford

Applicant

And

Ms Donnellan

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

By an Application in an Appeal filed on 14 September 2018, Mr Bradford (“the applicant”) seeks a number of orders in relation to the appeal against parenting and property orders made by Judge Harman on 9 July 2018 in proceedings against Ms Donnellan (“the respondent”).
Orders 1 to 11 as sought in the application are final parenting or property orders, presumably sought in substitution for those made by the primary judge. They are not orders that can properly be made in an Application in an Appeal. Therefore, there are only two orders that remain for consideration.
Order 12 seeks an order that the Court provide a transcript of the proceedings before the primary judge.
Order 13 seeks the following order:
13.I am seeking for Court Order in regards to providence of the second court hearing and organise an assistance in the court because of my mental disability and financial hardship. I can not represent myself during the court proceedings and I can not afford a private lawyer.
(As per the original)
The Court is not in a position to make Order 13. It has neither the facilities nor the funding to assist people to run their cases.
As to Order 12, the Court is not provided with the funding to provide transcripts to litigants and does not do so save in exceptional circumstances: Sampson & Hartnett (2013) FLC 93-542 (“Sampson”) at [83]; Finch & Shibo (No. 2) [2016] FamCAFC 108 at [8].
The Court in Sampson pointed to a number of matters that may be considered in determining an application for the provision of transcripts (at [16]):
·Whether the case is a financial or parenting case;
·Whether the whole transcript or part thereof is necessary for the determination of the appeal or part of the appeal;
·The likely cost of the relevant transcript and whether the appellant can afford all or part of the cost of the transcript;
·The proportionality of the cost of the transcript to the appellant’s anticipated costs in relation to the whole appeal, including the preparation of appeal books;
·The prima facie merits of the appeal;
·Whether the question of providing a transcript can be left to the Full Court hearing the appeal;
·Any other relevant facts or circumstances.
The proceedings before the primary judge were both parenting and property proceedings. The outcome of the parenting proceedings was that the parties’ two children, who were born in 2011 and 2012, were to live with the respondent, who was to have sole responsibility for them. The applicant was restrained from spending time with the children, removing the children from the respondent’s care or the care of any other person or organisation charged with the children’s care, and from communicating or contacting the children or the respondent. They are parenting orders of great significance and the Court may be more inclined to make an order for the provision of the transcript in such cases. The balance of the proceedings related to the property settlement of the parties.
The Independent Children’s Lawyer has very helpfully appeared to assist the Court today. She has pointed out that the hearing occupied two days and that both parents were cross-examined on each day, so to the extent that reference to the transcript is necessary, it is likely that all of the transcript will be required. She estimates the cost of obtaining that transcript as being in the order of $4,000.
The next issue to consider is whether or not the applicant can afford to pay for the transcript. His affidavit in support of this application does not refer to his financial position at all. However, he has told me this morning that he owns a property at Suburb A but he does not know how much it is worth. It has a mortgage in respect of which he says he was paying $350 per week but is no longer paying that amount because he cannot afford it. He says he has been living on his savings but has only approximately $200 left. When that runs out, he will ask his mother for help.
In response to a matter raised by the respondent, he did not want to say when he stopped work. The assertion from her is that he is in receipt of benefits from WorkCover.
Those statements by the applicant must be seen in the light of comments made by the primary judge. It appears that the applicant does not seek to challenge these findings on the appeal. The primary judge noted that the applicant had produced “not a single document by way of disclosure” (at [16]). The financial statement that he filed in support of the proceedings was described as being “somewhat incomplete and unhelpful” (at [34]).
In the proceedings, the applicant filed three affidavits. The longest was a little over one page in length. The other two were brief. None of the affidavits referred to his financial position or to the property proceedings. The primary judge found that effectively he filed no evidence in the proceedings (at [68]).
I take into account the matters asserted by the applicant from the bar table, but they have some inherent difficulties, as it would appear that he is supporting himself without any apparent means to do so. Given the findings of the primary judge as to disclosure and the fact that the applicant still owns a property at Leumeah with an unspecified value, I am not satisfied that he has established that he cannot afford to pay for the transcript.
It is difficult to assess the proportionality of the cost of the transcript he anticipates in relation to the whole appeal, as I am not aware of the costs of the preparation of the appeal books.
It is necessary to form some opinion about the prima facie prospects of success of the appeal. The Notice of Appeal contains ten grounds. Grounds 9 and 10 are not proper grounds of appeal. Only one ground, Ground 1, seems to refer to the evidence and simply asserts that the decision was based on “unreliable evidence” of the respondent. There is a difficulty with that ground of appeal given that, effectively, the applicant called no evidence in the proceedings. Further, according to the primary judge (at [77] of his Honour’s reasons), the applicant only asked one question of the respondent in cross-examination. His cross-examination of the Family Consultant was limited and, according to the primary judge at [88],
sought to elicit from the Family Report Writer only from where the Family Report Writer had obtained information with respect to family violence. The Report Writer was clear in identifying the source of such allegations as being [the respondent] material produced on subpoena and, to some extent, the children.
It is therefore not entirely surprising that the primary judge accepted the evidence of the respondent.
Ground 1 will be a difficult ground of appeal to establish. The same may be said of Ground 5.
The other grounds do not seem to me to have substantially stronger prospects of success, having regard to their form. However, I bear in mind that on an application such as this, the Court can only glean an impression from the grounds of appeal themselves and the reasons, and does not have access to any further documents that might shed light on the prospects of success.
It follows that I am not in a position to find that the appeal entirely lacks merit.
I do not consider the question of providing the transcript can be left to the Full Court hearing the appeal because if that Court determines the transcript is required, it effectively means the appeal will need to be adjourned.
Finally, as to any other matters, the applicant asserts that he is in difficulty because of the state of his mental health and, in particular, the medication that he is taking in relation to it and for pain relief. He has annexed to his application his patient history from his pharmacy, together with entries from Wikipedia in relation to each of the drugs he is taking. Accepting that he is having some difficulties and that the medication he is taking is not assisting, that is, not of itself, in my view, sufficient to overcome the other difficulties in the application.
Thus, notwithstanding the significant nature of the orders made by the primary judge, I am not satisfied that the evidence establishes that the circumstances are so exceptional as to justify the Court providing a copy of the transcript.
Accordingly, the Application in an Appeal filed on 14 September 2018 is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 24 September 2018.

Legal associate:

Date: 13 November 2018