COLLINS & RICARDO

[2013] FamCA 646

FAMILY COURT OF AUSTRALIA

COLLINS & RICARDO [2013] FamCA 646

FAMILY LAW – Parenting - Contravention – Where the parties each applied for access to the audio recording of the proceedings – Where the father is a litigant in person - Policy issues – Where the applications are inconsistent with the published policy of the Court – Where an aide memoire was provided to the parties by the Court and where the remaining audio consisted of the cross examination of the father’s witnesses – Applications refused.

Family Law Act 1975 (Cth)

APPLICANT: Mr Collins

RESPONDENT: Ms Ricardo

FILE NUMBER: SYC 4959 of 2009

DATE DELIVERED: 30 August 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 27 August 2013

REPRESENTATION

THE APPLICANT:	In Person
SOLICITOR FOR THE RESPONDENT:	Mr Autore

Orders

1. The oral applications of the parties made on 27 August 2013 for provision at Court expense of audio recordings of the proceedings before the Court on 26 and 27 August 2013 in the form of CD-ROM are refused.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: SYC 4959  of 2009

Mr Collins

Applicant

And

Ms Ricardo

Respondent

REASONS FOR JUDGMENT

1. These are contravention proceedings between the father and mother in relation to parenting orders. The proceedings were heard on 26 and 27 August 2013 and they were adjourned part heard to dates in February 2014.

2. At the end of the hearing on 27 August 2013 the father asked that he be provided with the audio transcript of the hearing. I understood the reason to be that the audio recording would help him prepare for the resumed hearing in February 2014 and that he could not afford to purchase the transcript in written form. The father also said something to the effect that a judge had granted a similar application previously.

3. After the father made that application, the mother’s solicitor made a similar application on her behalf. I reserved consideration of those applications.

4. Given the way in which this issue was raised there is little assistance in relation to the nature of the applications and the matters that should be taken into account.

5. On balance, it seems to me that this is an administrative matter, albeit one that is incidental to the exercise of judicial power.

6. The records of the Court reveal that a similar order was made by Coleman J on 5 December 2012. His Honour was sitting as the Full Court in respect of the father’s appeal against the orders he seeks to enforce before me, being the parenting orders made on 12 January 2012.

7. Insofar as this is an administrative matter it would normally be referred to the Registry Manager. However, it appears that the particular applications fall outside the discretion of the Registry Manager. The Court’s policy is published on its website and is as follows:

   Provision of transcripts

   Transcripts can be purchased only by the parties to the proceedings or their lawyers. Only the transcript of proceedings will be included; the documentation will not include judgments, rulings or orders.

   Under its current records retention policy, the courts retain recordings for 10 years. Therefore, requests for transcripts of proceedings beyond 10 years cannot be processed.

   Access to court recordings

   To reduce costs, clients may wish to listen to recordings of their proceeding and select specific segments for transcription.

   Applications to access recordings need to be made through the relevant Registry Manager, clearly setting out the reasons a client wishes to access recordings. Access to recordings will be considered on a case-by-case basis.

   The courts do not provide unsupervised access to recordings. Should approval be provided to access recordings, Auscript recordings will be accessed in Family Law Court facilities.

   As with the provision of transcripts, access will only be provided to recordings of proceedings, not judgments, rulings or orders.

   Costs for the provision of transcript and/or listening facilities

   The costs associated with large amounts of transcription or dubbing audio records for supervised access can be substantial. It is therefore recommended that parties seek cost estimates for their requirements before placing orders.

   In some cases, it may prove cheaper to order a single block of a proceeding from the outset, rather than ordering several smaller segments or listening to recordings and then placing a transcript order.

   Transcripts order form

8. These applications were made at the end of the sitting day and were not supported by any additional evidence or submissions beyond those that arose in the contravention proceedings and those that are mentioned herein.

9. I take it that the father’s application is based on the fact that he is a litigant in person, impecunious and it would be unfair for him to conduct complicated proceedings without a detailed record of the evidence, particularly where the hearing has been adjourned for nearly six months.

10. As to the father’s financial circumstances I was not provided with a Financial Statement or other written evidence about the father’s financial circumstances. Some questions about financial matters were put to him in cross-examination in connection with the contravention application. He gave his occupation as that of farmer. He was asked about another business but gave evidence to the effect that with injuries to his back and shoulder and the work associated with care proceedings in relation to his son, C (involving Children’s Court and Supreme Court actions) and the first instance and appeal proceedings in relation to his daughter S, in the Family Court, he had not performed any significant work in that business for some time. He was asked about the property he owns and confirmed that he owns a rural property near City 2. He said that he owed money in respect of that property. He was asked about the fate of a financial settlement he received from a former partner and said that he had spent those funds to discharge debts. He said that he had taken a second job to afford to travel to Western Australia for an aborted contact visit in October 2012.

11. There is no probative evidence about the father’s financial circumstances. No evidence of the value of his assets, his debts or his financial resources. There is no evidence of his income or outgoings.

12. It follows that there is no financial reason before me as to why the father is self represented.

13. There is an obvious concern about these applications because they are entirely inconsistent with the published policy of the Court. As is referred to above, that policy provides that in those cases where access is given to audio recordings, that must be exercised on Court premises. There is no ability to supervise that access if parties are provided with the recordings to take home.

14. I have not been told what the cost would be to provide the recordings sought. I assume that there would be a cost to the Court levied by the transcribing contractor under the terms of the contract between the contractor and the Court. There would be the work associated with isolating the relevant audio and burning a required CDs. Unless that cost is a trivial one, there are issues about public policy. The Court is an organ of government and is wholly funded from Consolidated Revenue. It has a finite budget allocation and there are many important demands on that budget. With Commonwealth appropriation devices such as efficiency dividends, bodies like the Court can be required to operate on reduced allocations for the future. In that context the highly unusual step of diverting public funds for individual litigants must be carefully examined. There is a question of the impact of such expenditure on the capacity of the Court to service its own caseload and an issue of equity for litigants in other cases. 

15. Finally, and importantly, the father is in effect seeking access to the recording of the evidence given in his own case. The two days that are the subject of the applications were taken up exclusively with the father’s case. As to the technical aspects of the proceedings, by an aide memoire prepared by me and supplied to the parties, I endeavoured to ensure that they had an accurate record of the allegations put to the mother and were aware of the status of the proceedings – which of the allegations remain on foot, the concessions made in relation to them and thereby, the relevant issues and the obligations / onus of proof in relation to those remaining allegations. Similarly, I noted in the orders made adjourning the proceedings, the stage at which the proceedings had been adjourned and the matters that had to be addressed on the resumption of the hearing.

16. The remaining matter of import covered by the audio recordings is the cross-examination of the father’s witnesses. There was brief cross-examination of the father’s fiancée, Ms I and then the father’s own testimony. It is difficult to see any prejudice to the father in not having a recording of every word of his own cross-examination. I note also that, at his request and with the consent of the mother’s solicitor, the father had the assistance of Ms I taking notes during his testimony.

17. Taken together, these matters argue against granting the father’s application.

18. Unfortunately there is no evidence before me of the basis on which a similar order was made in the appeal proceedings. It may be that the order was made because the Full Court would be assisted thereby but I can only speculate about that.

19. I take it that the mother’s application was prompted by and relied on the father being successful in his request. That is understandable as it might be seen as unfair if the father had an advantage in proceedings which could have very serious outcomes for her (fine, imprisonment etc.)  The father’s application having been rejected, based on similar considerations in respect of the mother and the fact that she had legal representation, her application also fails.

20. I was not told that any application has been made to the Registry Manager for access under the Court’s policy. That may be because that relief would not be of any assistance to the parties.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 30 August 2013.

Associate:

Date:  30 August 2013