Collins & Ricardo (No 2)
[2014] FamCAFC 94
•21 May 2014
FAMILY COURT OF AUSTRALIA
| COLLINS & RICARDO (NO. 2) | [2014] FamCAFC 94 |
| FAMILY LAW – APPEAL – Application in an Appeal – Whether to provide audio transcript of proceedings – Where proceedings relate to Orders that are not the subject of the present appeal – HELD – Application dismissed. |
| Family Law Rules 2004 (Cth): r 22.36 |
| Collins & Ricardo [2014] FamCAFC 53 |
| APPLICANT: | Mr Collins |
| RESPONDENT: | Ms Ricardo |
| FILE NUMBER: | SYC | 4959 | of | 2009 |
| APPEAL NUMBER: | EA | 15 | of | 2012 |
| DATE DELIVERED: | 21 May 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan |
| HEARING DATE: | 21 May 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 January 2012 |
| LOWER COURT MNC: | [2012] FamCA 11 |
REPRESENTATION
| FOR THE APPLICANT: | In person |
| FOR THE RESPONDENT: | In person |
Orders
That the Application in an Appeal filed by Mr Collins on 14 May 2014 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Collins & Ricardo (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 15 of 2012
File Number: SYC 4959 of 2009
| Mr Collins |
Applicant
And
| Ms Ricardo |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally.
This is an application in an appeal filed by Mr Collins (“the applicant”) on 14 May 2014. It is his application that the court provides him with “… a copy of 30 mins of audio transcripts of Justice Coleman of the 30/8/12”.
Ms Ricardo (“the respondent”) opposes the application.
The applicant relies on his affidavit filed the same day. It is brief and, excluding formal parts, is as follows:
1.I ask the court to supply a copy of 30 mins of audio transcripts of Justice Coleman of the 30/8/12.
2.These transcripts have been ordered and paid for by myself.
3.9 days of Audio transcripts of Justice Watts were supplied in December 2012, This request is no different (sic).
Background Facts
So as to understand the gravamen of the application, some background history must be considered. This is helpfully set out in Finn J’s reasons for judgment published on 20 March 2014 (Collins & Ricardo [2014] FamCAFC 53) as follows:
1.
This matter was listed before us today pursuant to letters written on
5 February 2014 by the Appeal Registrar to both the appellant and respondent to the appeal, and to the Independent Children’s Lawyer. The letters from the Registrar advised the parties that the matter was to be listed before us today so we could consider whether to dismiss for want of prosecution an appeal filed by [Mr Collins] acting on his own behalf. (I will refer to [Mr Collins] either as “the father” or “the appellant”). The appeal is against parenting orders made by Watts J on 12 January 2012 after a trial of some nine days in mid to late 2011.
2.Watts J’s orders essentially provided that the then four year old child of the father’s relationship with [Ms Ricardo] (whom I will refer to as “the mother” or “the respondent”), should live in Western Australia with the mother, that the mother should have sole responsibility for the child, and that the child should spend limited time at contact centres with the father who lives in New South Wales.
3.On 4 April 2012 the Appeal Registrar made orders expediting the hearing of the appeal, and also making what I would term “usual procedural directions” for the preparation of the appeal for hearing.
4.Further orders were then made by Coleman J on 18 June 2012 which essentially gave the father permission to listen to audio recordings of the trial so that the father could include in the appeal book parts of the transcript of the trial which he considered relevant.
5.Again, Coleman J made orders in relation to the parties being able to listen to recordings of the trial on 30 August 2012. Then, on 15 October 2012 his Honour made further orders of a similar content. But, importantly, on that day his Honour also made an order that discharged “any previous orders in relation to the timing of the filing by the appellant of the Appeal Books and Summary of Argument” (Order 3), together with a further order (Order 4):
That upon the appellant certifying in writing that the Appeal Books have been completed to the best of his ability in accordance with the Court’s directions, the Appeal Registrar place the appeal in the Sydney sittings of the Full Court hearing on a date to be arranged between the appellant and [the solicitor] for the respondent.
6.Yet again on 5 December 2012, it was necessary for Coleman J to make further orders concerning the audio recordings of the trial.
7.Nothing then happened after those orders were made by Coleman J on 5 December 2012, at least as I understand it, until 9 December 2013 – that is 12 months later – when the Appeal Registrar emailed the appellant father and pointed out that the matter had not progressed for a year and advising that unless the appeal books were filed by 31 January 2014, the appeal would be listed before a Full Court to consider its dismissal for want of prosecution.
8.
When no action resulted from that email a formal letter was sent by
the Registrar on 5 February 2014 to all parties listing the matter today so that we might consider dismissal of the appeal for want of prosecution. That is the letter I mentioned at the outset of these reasons. Following that letter from the Registrar dated 5 February 2014, the father on 13 March 2014 filed an application in which, in brief terms, he sought orders which would add four affidavits, none of which were apparently before the trial judge, to the
appeal book, and which would also require the Court to bear the cost of the provision of transcript of the trial for purposes of the appeal.
Self-evidently, the father’s appeal was not dismissed for want of prosecution. Two matters of note emerge from the passages taken from Finn J’s reasons. First, the appeal in which the application is filed is against orders made by Watts J. There is no appeal against the orders made by Coleman J on 30 August 2012. Secondly, the contents of the appeal books has been settled and it is common ground they do not include the transcript of the hearing the subject of this application.
The applicant explained this morning that the reasons he wants the audio CD of the hearing before Coleman J sent to him are threefold:
·to hear again what his Honour said about the manner in which appeals are conducted;
·he lives too far away to come to Sydney to listen to the audio recording; and
·he has spent a considerable amount of money on portions of the transcript of the hearing before Watts J and cannot afford to pay for the Coleman J transcript unless he knows which parts of it might be relevant.
In answer to my question concerning the reason for his request for the audio CDs of the Coleman J hearing to be sent to him, the applicant said it would only be upon listening to those audio CDs that he could be sure that the contents would not be relevant to the appeal. Be that as it may, they do not form part of the appeal books nor has provision been made for their inclusion in the contentious appeal books.
It follows that the application could not be characterised as an application in relation to an appeal as that term is used in r 22.36 of the Family Law Rules 2004 (Cth) (“the rules”). Nor, with respect to the submissions made by the applicant, is there any other proper basis on which this court ought to depart from its usual policy, a policy established for sound reasons, to not circulate audio CDs to parties. It is open, of course, to the applicant to attend either this registry or the Wollongong registry and listen to the 30 minutes of the CD which is available. It is not accepted that doing so would cause an impossible inconvenience to the applicant, particularly in circumstances where he says he wishes to attend the Wollongong registry to inspect the court file.
It is not helpful or probative in these reasons to consider whether the application involves an exercise of judicial power or is administrative in nature and should not have been placed before the court. The most efficient way of dealing with the issue is to assume power. I am not persuaded that it is in the interests of justice that the power be exercised in the manner sought by the applicant and the application will be dismissed.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 21 May 2014.
Associate:
Date: 2 June 2014
0