CRABMAN & CRABMAN - [2019] FamCAFC 141

FAMILY COURT OF AUSTRALIA

CRABMAN & CRABMAN

[2019] FamCAFC 141

FAMILY LAW – APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Where the father filed an application to have the transcript provided to the parties or, alternatively, for leave to be given for the appeal to proceed without transcript – Where the father’s grounds of appeal raise issues of apprehended bias and procedural unfairness – Where a Full Court will require the transcript to properly determine the father’s grounds of appeal – Where the father acknowledged he could afford the cost of the transcript if given extra time – Order made to extend time for father to provide transcript.

FAMILY LAW – APPLICATION IN AN APPEAL – PROVISION OF AUDIO OF EX TEMPORE REASONS – Where the father contends that the trial judge omitted a paragraph from the settled reasons for judgment – Where the mother conceded that such a paragraph was omitted – Order made for Appeal Registrar to make available audio of the trial judge’s ex tempore reasons.

Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189
Lysons & Lysons (2019) FLC 93-891; [2019] FamCAFC 29
Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348
Sampson & Hartnett (2013) FLC 93-542; [2010] FamCAFC 220

APPLICANT:

Mr Crabman

RESPONDENT:

Ms Crabman

FILE NUMBER:

BRC

10907

2011

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

15 August 2019;

Orders made on 6 August 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

6 August 2019

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

THE RESPONDENT:

In person via telephone

Orders

ORDERS MADE ON 6 AUGUST 2019

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.
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.
The applicant’s application in an appeal filed on 20 June 2019 be otherwise dismissed.
There be no order as to costs of the application in an appeal.

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

REASONS FOR JUDGMENT

On 6 February 2019, Judge Vasta made orders in the Federal Circuit Court of Australia (“the Federal Circuit Court”) determining the application of Mr Crabman (“the father”) for Ms Crabman (“the mother”) to be dealt with for contraventions of parenting orders and the father’s further application for parenting orders in respect of the parties’ three children.
In summary, the trial judge found the mother to have contravened, 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 term and made orders for school holiday periods.
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.
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 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.
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.
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.
These are my reasons for making those orders.

Provision of transcript

The father sought an order that the Court provide transcript at the Court’s expense. The father provided an estimate from Auscript of between $1,540 and $1,920 to obtain the transcript.
Failing that order being made, the father sought an order that he have leave to proceed with his appeal without transcript. This alternative confronts fundamental difficulties. First, having regard to the challenges the father seeks to mount on appeal as summarised above, it would be essential to have the transcript of the proceedings to properly consider and determine those challenges. Second, the mother submitted on the application that she would want access to the transcript in order to defend at least some of the challenges mounted by the father on appeal.
The question of whether this Court has power to order that the Court itself provide transcript, and the discretionary considerations involved in that question, were discussed by the Full Court of this Court in Forbes & Bream (2008) 222 FLR 96 (“Forbes”) (at [28]-[36]) and were again considered by the Full Court in Sampson & Hartnett (2013) FLC 93-542 (“Sampson & Hartnett”).
In Forbes the Full Court determined, at [35], that if the interests of justice require it, and the party requiring transcript cannot afford the cost of obtaining it, the Court may in the exercise of its discretion agree to provide the transcript of relevant parts to enable the appeal to proceed.
In Sampson & Hartnett the Full Court identified, at [16], the following

non-exhaustive list of discretionary considerations in determining whether the Court should itself fund the provision of transcript:
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);
e)The prima facie merits of the appeal;
f)Whether the question providing a transcript can be left to the Full Court hearing the appeal;
g)Any other relevant facts or circumstances.
Self-evidently, whether an appellant, or party requiring transcript cannot afford the cost of transcript is a centrally important consideration.
In this case, given the relatively modest cost involved and the father’s evidence that he has some accumulated savings (although not to the full extent required to acquire the transcript) the question raised on the hearing was whether, given more time, the father could fund acquisition of the transcript himself.
In the result, the father acknowledged that with more time he would be able to fund this cost.
As to the time to be allowed, in the course of argument it became clear that other time considerations arise in the circumstances of this case. The father advised that a recent alleged incident concerning one of the children and the mother’s current partner had led to an interim order being recently made in the Federal Circuit Court for the children to live with the father. The father advised that this position was to be reviewed by the Federal Circuit Court later this month. The mother, who appeared by telephone on the application, did not dispute the father’s submissions in this respect.
It would seem, on the father’s unchallenged oral submissions at the hearing, that the subject incident will be the subject of some investigation by the Queensland Police Service and that the Federal Circuit Court will consider any further parenting orders to be made, with the outcome of such investigation, later this month.
In the circumstances, there could be no prejudice to the mother, and she did not claim any such prejudice, for time to be extended for the father to obtain and provide transcript to the date provided for in my order. Indeed, depending upon the outcome of the current parenting proceedings in the Federal Circuit Court there may be, in the result, no practical utility in the father pursuing this appeal, but of course that is a matter for the parties and is obviously dependent upon what occurs concerning the current parenting proceedings in the Federal Circuit Court.
With respect to the order made for the Appeal Registrar to obtain the audio referable to the delivery by the trial judge of ex tempore reasons, it is the father’s contention that a matter of substance pronounced orally by the trial judge does not appear in the settled reasons for judgment.
In his affidavit filed in support of this application the father deposes that during the delivery of the extemporaneous reasons delivered by the trial judge that the father “took copious notes”. The father deposes that during delivery of the reasons for judgment the trial judge stated words to the following effect:
“I am going to say this, the Orders I make today are my orders, no one else’s orders, and people who breach My Orders, are brought back before me, and the only things I do with people who breach My Orders, is to send them somewhere where they serve 3 square meals a day, and I am sure you understand what that means, I don’t need to say anything more about that”
The father points to the feature that no such statement appears in the settled reasons for judgment.
The father makes a very serious allegation about this. He contends that this statement or paragraph was purposely left out of the settled reasons for judgment following publication by the Full Court of its judgment in Lysons & Lysons (2019) FLC 93-891 delivered on 21 February 2019 and the father points to the observations made by that Full Court at [67]-[73] which were critical of arguably similar comments made in that case by the trial judge. In his affidavit, the father refers to having made a formal complaint to the Chief Judge concerning this aspect.
In his submissions in support of this aspect, the father relies upon the “Guide to Judicial Conduct” formulated by the Council of Chief Justices dealing with revision of oral judgments and the limitations upon making any revision of substance.
For her part, the mother agrees that a statement to the effect as contended for by the father was made by the trial judge in the course of delivery of the extemporaneous reasons for judgment.
Whilst the parties are thus in agreement that such a statement was made, it will be necessary for a Full Court dealing with this argument, given its nature, to have access to audio for the purpose of determining whether or not any statement to such effect was in fact made by the trial judge. I would emphasise that I make no conclusion whatsoever about any relevant consequence, whether or not any such statement was made. That will be entirely a matter for the Full Court hearing the appeal. In these circumstances, provision of transcript will not elucidate an answer to the question because the settled reasons obviously are as they are, that is, they appear without the relevant alleged paragraph or statement.
For these reasons, I directed that the Appeal Registrar obtain the relevant audio for the purpose of allowing the parties an opportunity to attend Court to hear the audio to confirm whether or not any statement to the effect alleged was made by the trial judge, and the precise content of any such statement.
For these reasons I made the orders earlier set out upon the hearing of the father’s Application in an Appeal.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 15 August 2019.

Associate:

Date: 15 August 2019