CRABMAN & CRABMAN

[2020] FamCAFC 118

FAMILY COURT OF AUSTRALIA

CRABMAN & CRABMAN [2020] FamCAFC 118

FAMILY LAW – APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Where the father appeals from parenting orders made in February 2019 – Where the father seeks the Court provide the transcript of the hearing before the trial judge and of the trial judge’s ex tempore reasons – Where the father alleges a denial of procedural fairness – Where the father alleges the trial judge has omitted portions of his ex tempore oral reasons from the written reasons for judgment – Where the father establishes an inability to afford the cost of the transcript – Where the father’s challenges on appeal are directed to fundamental aspects concerning the integrity of the judicial process – Where the audio recording of the ex tempore reasons is insufficient – Application granted.

Crabman & Crabman [2019] FamCAFC 141
Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189
Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348
Sampson & Hartnett (2013) FLC 93-542; [2010] FamCAFC 220

Federal Circuit Court Rules 2001 (Cth)

APPLICANT: Mr Crabman

RESPONDENT: Ms Crabman

FILE NUMBER: BRC 10907 of 2011

APPEAL NUMBER: NOA 13 of 2019

DATE DELIVERED: 14 May 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 14 May 2020

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 6 February 2019

LOWER COURT MNC: [2019] FCCA 339

REPRESENTATION

THE APPLICANT: In person by telephone

THE RESPONDENT: In person by telephone

Orders

1. The Court obtain and provide to the parties the transcript of the hearing on 5 and 6 February 2019 and of the trial judge’s extemporaneous reasons for judgment delivered on 6 February 2019.

2. No less than seven (7) days prior to the hearing of the appeal on 3 June 2020, each party be at liberty to file and serve an addendum Summary of Argument, of no more than five (5) pages, referencing relevant parts of the transcript.

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 Crabman & Crabman 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
BRISBANE

Appeal Number: NOA 13 of 2019
File Number: BRC 10907 of 2011

Mr Crabman

Applicant

And

Ms Crabman

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 5 and 6 February 2019, a trial judge in the Federal Circuit Court of Australia heard the contravention of parenting orders application of Mr Crabman (“the father”) brought against Ms Crabman (“the mother”) and the respective applications of the parties for parenting orders with respect to the parties’ children, X born in 2006, Y born in 2008 and Z born in 2011.

2. On 6 February 2019, the trial judge delivered extemporaneous reasons for judgment and made orders. In summary, the trial judge found the mother to have contravened on several counts, without reasonable excuse, parenting orders that had been made on 4 November 2015 and ordered “make up” time for the children to spend with the father in forthcoming holiday periods. With respect to the parenting orders, the trial judge made an order for the children to live with the mother and to spend time with the father one weekend out of every four during the school terms and made orders for time in school holiday periods.

3. By his Amended Notice of Appeal filed on 20 June 2019, the father appeals from those orders. In summary, the father appeals from the finding that the mother had a reasonable excuse for any contravention and the father appeals from the orders that the children live with the mother and the time they are to spend with him.

4. In the context that both parties were self-represented in the proceedings and neither having any relevant legal training or experience, the father’s challenges on appeal include, in summary and paraphrased form, the following:

   (a)That the trial judge displayed apprehended bias against the father;

   (b)That the trial judge failed to afford the father procedural fairness by:

   i)failing to provide advice as to the procedure in accordance with Re F: Litigants in Person Guidelines (2001) FLC 93-072;

   ii)failing to follow the procedures prescribed in the Federal Circuit Court Rules 2001 (Cth) concerning contravention applications;

   iii)failing to take account of relevant evidence and misunderstanding relevant evidence in reaching the determinations made;

   (c)That in the course of the proceedings the trial judge attempted to “bully” the parties into compliance;

   (d)That the trial judge made material errors of fact and errors as to the proper weight to be given to relevant evidence;

   (e)That in the contravention proceedings the trial judge made errors of law and failed to provide adequate reasons for his determination.

5. By an Application in an Appeal filed on 20 June 2019, the father sought orders for, inter alia, this Court to provide the parties with transcript of the proceedings. Moreover, the father sought provision of what he contended was an omitted part or portion in the transcribed ex tempore reasons for judgment as settled and provided by the trial judge.

6. On 6 August 2019, I made the following orders in respect of the father’s Application in an Appeal filed on 20 June 2019:

   (1)That the time prescribed in Order 3 of the orders made by Registrar Kane on 27 May 2019 be extended to 4.00pm on 17 October 2019.

   (2)The Appeal Registrar obtain and make available for the parties to hear at the registry at a time determined by the Appeal Registrar, the audio of the trial judge’s ex tempore reasons delivered on 6 February 2019.

   (3)The applicant’s application in an appeal filed on 20 June 2019 be otherwise dismissed.

   (4)      There be no order as to costs of the application in an appeal.

7. On 15 August 2019, I delivered reasons for judgment for the orders made on 6 August 2019 (Crabman & Crabman [2019] FamCAFC 141). I incorporate into and as part of these reasons, without unnecessary repetition of them, those reasons. By reference to Forbes & Bream (2008) 222 FLR 96 and Sampson & Hartnett (2013) FLC 93-542 (“Sampson & Hartnett”), I set out in those reasons the discretionary considerations for determining whether the Court should fund the provision of transcript for an appeal, noting that whether an appellant can afford the cost of obtaining transcript is a centrally important consideration. As is also recorded in those reasons, at that stage the father anticipated that if he were afforded more time to do so he would be able to meet that cost (estimated to be between $1,540 and $1,920) – hence the extension of time provided for in the 6 August 2019 orders. That appeared to solve the question of whether the Court ought itself fund the provision of transcript for the appeal.

8. Unfortunately, as events have transpired, funding by the father has not come to pass. In this context it bears emphasis that the father’s household includes his current partner and her four children; plus the three children of their relationship; plus (since about July/August 2019) the three children the subject of these proceedings. In short, the father works as a self-employed fitter and turner supporting a household comprising two adults and no less than 10 children. Unsurprisingly, the father currently deposes to financial constraints upon his ability to fund the provision of transcript.

9. By a further Application in an Appeal filed on 17 March 2020, the father, who is self-represented, seeks orders that, inter alia, the Court provide a transcript of the extemporaneous reasons for judgment delivered by the trial judge on 6 February 2019, or alternatively that the Full Court hearing his appeal receive the audio of the recording of those reasons; and that the father be permitted to proceed with his appeal without the transcript. In that event, the father acknowledges, by order sought, that he would not be permitted to advance arguments on appeal where reference to the transcript would be necessary for those arguments to be made or considered.

10. By her Response filed on 1 April 2020, the mother, who like the father is self- represented, seeks that the father be ordered to provide a full transcript. In her affidavit filed in support of her Response the mother deposes at paragraph 3:

    I believe the transcript is required to prove or disprove the appeal as the bulk of the Appeal Submissions rely on issues only able to be clarified by the provision of the transcript.

11. With respect to her, the mother is correct in her contention. Self-evidently, given the substance of the challenges the father seeks to advance on appeal, a transcript is necessary in order for a Full Court to consider whether any of the father’s challenges have any substance. Conversely, absent a transcript and the consequent limitations that would necessarily be imposed, the father’s legitimate right to appeal would be rendered essentially nugatory. Moreover, it is not without significance in terms of considering the interests of justice that many of the father’s challenges on appeal are directed to fundamental aspects concerning the integrity of the judicial process.

12. Whilst the audio recording of the extemporaneous reasons for judgment delivered by the trial judge would be available to the Full Court hearing the appeal, it would potentially be a cumbersome process for that to be the means by which the Full Court considers the father’s complaint about that particular aspect. Moreover, the full transcript may contain relevant content to explain any alleged divergence between the audio recording and that which appears in the trial judge’s settled reasons, or at least the materiality, or lack of any materiality, of any such divergence.

13. Obviously, the subject audio would not supply the means by which the Full Court could consider the balance of the father’s challenges on appeal.

14. Turning to the non-exhaustive list of discretionary considerations identified at [16] of Sampson & Hartnett:

    (a)the case is a parenting case – a factor favouring a positive exercise of the discretion;

    (b)the whole transcript is required but, in relative terms, does not involve very substantial cost;

    (c) and (d)I am satisfied that the father cannot meet that cost. Its proportionate cost is not a factor against a positive exercise of the discretion;

    (e)without a transcript it is not possible to make a prima facie assessment of merits of the appeal – conversely it is not possible to conclude that the appeal is devoid of merit. As noted, the father seeks to raise challenges of significance going to fundamental aspects of the judicial process;

    (f)this appeal has been on foot for a significant period. I do not consider that the question of provision of the transcript can sensibly be left to the Full Court hearing the appeal given the nature of the challenges the father seeks to raise on appeal and the potential for the appeal having to be adjourned if transcript is not available;

    (g)in the interests of justice the transcript ought be obtained by the Court so that the father’s right of appeal is not rendered nugatory.

15. It is my judgment that the preponderance of discretionary considerations, in particular the interests of justice, require the Court to provide the relevant transcript of the hearing on 5 and 6 February 2019 and of the trial judge’s extemporaneous reasons for judgment delivered on 6 February 2019.

16. The father’s appeal is now listed for hearing by the Full Court on 3 June 2020.

17. I will thus order that the Court obtain and provide the relevant transcript of the hearing on 5 and 6 February 2019 and of the trial judge’s extemporaneous reasons for judgment delivered on 6 February 2019.

18. I will further order that no less than seven (7) days prior to the hearing of the appeal each party be at liberty to file and serve an addendum Summary of Argument, of no more than five (5) pages, referencing relevant parts of the transcript.

I certify that the preceding eighteen (18) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Kent delivered on 14 May 2020, edited to correct grammatical errors and some infelicity of expression.

Associate: 

Date:  17 June 2020