Darley & Darley
[2019] FamCAFC 238
•6 December 2019
FAMILY COURT OF AUSTRALIA
| DARLEY & DARLEY | [2019] FamCAFC 238 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – TRANSCRIPT – Where the mother filed multiple Applications in an Appeal – Where the mother has three appeals being heard concurrently – Where the mother seeks transcript be provided in respect of all three first instance hearings – Consideration of Forbes & Bream (2008) 222 FLR 96 and Sampson & Hartnett (2013) FLC 93-542 – Where the mother acknowledges she has the financial resources to purchase transcript – Where impecuniosity ought be established in respect of applications for the Court to provide transcript for appeals – Where the Court, fortuitously, has copies of a significant portion of the transcript sought by the mother – Where that transcript is to be released to the parties – Where the mother is permitted to listen to the audio of the remaining hearings to determine the transcript she requires for her appeal – Applications dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where one of the mother’s appeals was deemed abandoned due to a failure to file her supplementary appeal book – Where the mother claims to have filed her supplementary appeal book on time via email – Where the mother was permitted to make oral application for reinstatement – Where the delay has not been substantial and it appeared to be explained in that there had been some breakdown or hiatus in communication, such that any default was either illusory or at least not intentional – Where no prejudice to any other party was identified – Oral application granted. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO ISSUE SUBPOENAS – Where part of the mother’s appeal challenges the trial judge’s refusal to permit her to issue subpoenas to establish her claims that the father suffers mental health issues – Where the mother seeks to formulate an application for further evidence to be adduced on appeal referable to the father’s medical records – Where fairness dictates that the mother have some opportunity to establish the challenge she seeks to mount on appeal – Where it is a matter for the Full Court whether such subpoena material is accepted as further evidence – Application granted. |
| Family Law Act 1975 (Cth) s 102QB Family Law Rules 2004 (Cth) rr 22.18, 22.21, 22.44 |
| Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189 WJD v TEK (1998) 72 ALJR 1323; [1998] 9 Leg Rep SL4a |
| APPLICANT: | Ms Darley |
| RESPONDENT: | Mr Darley | ||
| INDEPENDENT CHILDREN’S LAWYER: | Norman & Kingston Solicitors | ||
| FILE NUMBER: | BRC | 2317 | of | 2013 |
| APPEAL NUMBERS: | NOA | 9 | of | 2019 |
| NOA | 39 | of | 2019 | |
| NOA | 83 | of | 2019 |
| DATE DELIVERED: | Orders made: 4 December 2019 Reasons for judgment delivered 6 December 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 4 December 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATES: | 18 December 2018; |
| 5 April 2019; and | |
| 23 August 2019 |
| LOWER COURT MNC: | [2018] FamCA 1086; |
| [2019] FamCA 206; | |
| [2019] FamCA 595 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Kingston, Norman & Kingston Solicitors |
Orders made on 4 December 2019
Appeal NOA 83 of 2019 be reinstated.
The Appeals Registrar make available to the parties the trial transcript in electronic form in Appeal NOA 9 of 2019.
The Appeals Registrar facilitate as soon as reasonably practicable the applicant mother listening to the audio of the hearings on 2 April 2019 and 10 June 2019 before Carew J, and the applicant mother’s applications to provide part only of those transcripts be adjourned to 10:00 am on 9 January 2020.
The applicant mother’s Applications in an Appeal for the Court to provide transcript be otherwise dismissed.
Leave is given to the applicant mother to issue a subpoena for the production of documents directed to Medicare to ascertain the identity of the respondent father’s treating medical professionals to be returned on or before 4:00 pm on 8 January 2020.
The applicant mother’s application for leave to issue subpoenas be otherwise adjourned to 10:00 am on 9 January 2020, with leave given to the Independent Children’s Lawyer to be excused at this hearing.
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 Darley & Darley 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 Numbers: NOA 9 of 2019; NOA 39 of 2019 and NOA 83 of 2019
File Number: BRC 2317 of 2013
| Ms Darley |
Applicant
And
| Mr Darley |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
On 12 December 2018, Hogan J made final parenting and property settlement orders in proceedings between Ms Darley (“the mother”) and Mr Darley (“the father”). An Independent Children’s Lawyer (“the ICL”) was a party to the parenting proceedings. Appeal NOA 9 of 2019 is the mother’s appeal from those orders. For ease of reference, this appeal will be referred to in these reasons as “the parenting and property appeal”.
On 5 April 2019, Carew J made orders with respect to the mother’s Contravention Application and required the mother to show cause as to why a vexatious proceedings order should not be made against the mother pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”). Appeal NOA 39 of 2019 is the mother’s appeal from those orders. For ease of reference, this appeal will be referred to in these reasons as “the contravention appeal”.
On 23 August 2019, Carew J made an order pursuant to s 102QB(2) of the Act prohibiting the mother from instituting proceedings without leave. Appeal NOA 83 of 2019 is the mother’s appeal from that order. For ease of reference, this appeal will be referred to in these reasons as “the s 102QB appeal”.
On 4 December 2019, I heard the mother’s various applications made in one or other of these appeals, and made orders. These are the reasons for those orders addressed under the headings which follow.
The mother and the ICL attended upon the hearing of these applications although the ICL did not seek to participate in any application concerning the s 102QB appeal. For his part, the father filed a Submitting Notice concerning the applications in each of the parenting and property appeal and the contravention appeal but otherwise did not participate in the hearing of any of these applications.
Reinstatement of abandoned appeal – the s 102QB appeal
Orders made at a procedural hearing conducted by the Appeals Registrar on 4 November 2019 included an order (Order 4) that the mother file a supplementary appeal book on or before 4:00 pm on 22 November 2019. As it appeared that the mother had failed to file the supplementary appeal book as ordered, the Registry proceeded on the basis that, by operation of r 22.21 of the Family Law Rules 2004 (Cth) (“the FLR”) this appeal was taken to be abandoned.
However, the mother contended that on 22 November 2019 she forwarded an email attaching the supplementary appeal book to the Registry for the purpose of filing the supplementary appeal book. The mother produced a copy of an email to that effect. Searches of the email inboxes maintained in the Registry were unsuccessful in finding any record of such an email having ever been received.
In the event, this apparent hiatus in communications between the mother and the Registry was remedied by a subsequent filing of the supplementary appeal book by the mother. Thus, on the hearing of her applications in these appeals the mother was invited to make, and did make, an oral application for reinstatement of the appeal pursuant to r 22.44 of the FLR.
In circumstances where the delay has not been substantial; and it appeared to be explained in that there had been some breakdown or hiatus in communication, such that any default was either illusory or at least not intentional; and no prejudice to any other party was identified; it can readily be concluded that the s 102QB appeal ought to be reinstated and an order to that effect was made.
Provision of transcript
By applications filed in each respective appeal, the mother sought orders that the Court provide the transcript relevant to each appeal at the Court’s expense. In respect of the parenting and property appeal, the trial was heard by Hogan J over a total of seven (7) hearing days. The mother deposed in her affidavit in support of her application that obtaining that transcript from Auscript would cost $14,130.86.
In the event, inquiries made in advance of the hearing of these applications revealed that Hogan J had obtained the trial transcript for the purpose of finalising her Honour’s reasons for judgment. Thus, fortuitously, the transcript for the parenting and property appeal was already available to the Court and could be made available to the parties for the purpose of that appeal without any additional expense being incurred. An order was made at the hearing to facilitate that transcript being made available to the parties in electronic form.
The hearing the subject of the contravention appeal was held on 2 April 2019 and the mother advised from the bar table in the course of the hearing that it was her understanding that the subject hearing had occupied a total of about four and a half hours and that the transcript of that hearing would cost approximately $1,800. The hearing the subject of the s 102QB appeal which took place on 10 June 2019 was said to comprise only 20 minutes. Whilst no estimated cost for that transcript was nominated, it could be expected that the cost of that transcript would be much less than $1,800.
The mother pursued her application that the Court ought provide, at its expense if necessary, the transcripts for each of the hearings the subject of the contravention appeal and the s 102QB appeal respectively.
The mother contended that the Court should meet any expenses for obtaining transcript notwithstanding that the mother did not mount any case to the effect that she was impecunious or could not afford the cost of transcript.
The reasons for judgment of Hogan J in the parenting and property proceedings, delivered in December 2018, record that the mother’s property which she was to retain included various bank accounts with total credit balances then of $137,400. Pursuant to the property settlement orders made by Hogan J not only was the wife to retain the assets she already held but was to receive one half of the net proceeds of sale of the former matrimonial home. Taken from the reasons for judgment, that property had an estimated value of between $500,000 and $550,000 with a mortgage debt of approximately $250,000. Thus, the wife was to receive half of the total estimated equity being between $250,000 and $300,000.
Whilst the wife did not provide any evidence in her affidavit material filed in support of these applications as to her current financial circumstances, in the course of argument of the appeal, with the references to the reasons for judgment just referred to being made, the mother did not seek to challenge or dispute that she has sufficient funds available to her to fund obtaining the subject transcripts.
In Forbes & Bream (2008) 222 FLR 96 (“Forbes”) the Full Court considered the question of the Court providing transcript (at [28] to [36]) by reference to the decision of the High Court in WJD v TEK (1998) 72 ALJR 1323. The Full Court referred to the decision of the plurality (McHugh J with whom Callinan J agreed) to the effect that there was no reason to doubt the view expressed by the Full Court in that case that it had no power to order the provision of a transcript free of charge; and the opposite view expressed by Kirby J. At [34] to [36] the Full Court observed:
34.The Family Law Act is silent on the question of the provision of transcript and provides no obligation, nor in our view any impediment, to the Court providing transcript in a particular case. Although Rules 22.23 and 22.24 place an obligation on the appellant (or cross-appellant) to provide transcript for insertion in the appeal book, the Court may dispense with the application of the Rules if warranted in a particular case. On one view this could mean simply that the requirement to provide transcript is waived but we do not consider the meaning to be necessarily so constrained.
35.If the interests of justice require it, and the appellant or
cross-appellant or party seeking it cannot afford the cost of transcript, the Court may in the exercise of its discretion agree to provide the transcript of relevant parts to enable the appeal to proceed. In Fortnum & Fortnum (No 2) [2008] FamCAFC 73 Finn J described this as part of the “supervisory role of the Full Court”. We would add to her Honour’s explanation the “supervisory power of the Court” may necessarily, in a particular case, require the Court to have transcript to fulfil its statutory function under s 94(2) of the Family Law Act. Thus the Court hearing an appeal may order the provision of transcript as an exercise of its incidental powers.36.We do not need to define the circumstances in which the discretion may be exercised. Suffice it to say that we doubt whether it would be exercised in anything other than exceptional cases. Furthermore, we consider that the vast majority of such cases will relate to parenting orders, where the necessity to arrive at a result in the best interests of the child may provide compelling reasons for transcript to be provided at the Court’s expense if the parties are impecunious.
(Emphasis added)
In Sampson & Hartnett (2013) FLC 93-542 (“Sampson”) the Full Court observed at [14], by reference to cases including Forbes, that a line of authority had emerged supportive of an approach that the Court may fund the cost of transcript “where the interests of justice required the provision of transcript so an appeal could be adequately prosecuted.” That Full Court observed at [16]:
16.Although in Forbes & Bream (supra) the Court indicated that it did not need to define the circumstances in which the discretion of the Court to provide the transcript at its expense should be exercised, it seemed to us that it would be of assistance to the applicant in this case to have some indication of the matters about which she would need to satisfy the Court in support of her application. We did so cognisant of the fact that this is a discretionary decision which will require consideration of the circumstances of each case and that the matters relevant to exercise of discretion cannot be circumscribed. However, there will be common factors identifiable in many such cases. We thought it would be helpful to identify these whilst acknowledging the weight to be attributed to any particular factor will vary from case-to-case. While the list of factors is not closed, those that we think may be of relevance in support of such an application are:
(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 of providing a transcript can be left to the Full Court hearing the appeal.
(g) Any other relevant facts or circumstances.
On the approach taken by the Full Court in Forbes, it can be seen that the question of the Court itself funding the provision of transcript only arises if the appellant (or cross-appellant) cannot afford the cost of transcript, that is, the party is impecunious. In contrast, arguably the approach of the Full Court in Sampson is to the effect that the appellant’s ability to afford the cost of transcript is one factor (the list of factors not being closed) relevant to the exercise of discretion, rather than being a threshold question before the discretion arises.
From the inception of this Court it has never been routine that transcript is obtained by a judge at first instance and it has never been the practice for the Court to routinely provide transcript to parties. The Court has never been funded, or provided with any budget, to facilitate trial judges receiving transcript as a matter of course, nor is there any budget for the Court to routinely fund transcript being obtained from the commercial provider engaged by the Federal Courts to provide transcript to parties. In Forbes, the Full Court specifically noted that the cost of providing transcript was not provided for in the Court’s budget and that incurring that cost “would impinge on other necessary expenditure for the proper operation of the Court.” Without the need to descend into the detail of this, it can fairly be observed that in the period of a little over a decade since Forbes was decided the budgetary constraints upon this Court’s operations have dramatically tightened. The limitations expressed by the Full Court in Forbes have thus markedly reduced, such that it is all the more the case today to conclude that any cost incurred by the Court to provide transcript for an appeal necessarily impinges on the Court’s ability to perform its functions.
Rule 22.18(1) of the FLR which imposes upon an appellant the responsibility for obtaining any transcript required for an appeal is a reflection of the reality that the Court does not have the resources to routinely provide transcript for appeals.
Of course, the Full Court which ultimately hears these appeals is not in any way bound by the determination made by me as a single judge determining this application, and thus the Full Court may revisit this conclusion. In my judgment, on the approach in Forbes, any discretion the Court has to, itself, fund the obtaining of transcript only arises if the appellant cannot afford the cost of transcript in circumstances where the interests of justice require the availability of transcript for the appeal to be adequately prosecuted. In short, the applicant would have to demonstrate impecuniosity for the discretion to arise. The mother does not establish that threshold.
If, on the approach in Sampson, inability of the appellant to afford the cost of transcript is not a threshold question, but is one factor in the exercise of discretion, then for myself it is difficult to envisage a case where it is not to be treated as a factor of determinative significance. In my judgment, impecuniosity of an applicant must be established to justify this Court taking the exceptional approach of funding the provision of transcript for an appeal.
In the present case, for the reasons already outlined, the applicant mother does not establish impecuniosity or that she cannot afford the cost of obtaining the relevant transcripts. Indeed, it can be seen that the likely cost of obtaining the full transcripts relevant to the contravention appeal and the s 102QB appeal is relatively modest vis-à-vis the mother’s financial resources and the capital available to her. The mother apparently intends to represent herself in these proceedings and will thus not incur legal costs.
On this basis, I determine that there ought not be any order for the Court to fund the provision of any transcript for these appeals. As already noted, fortuitously, transcript is already available with respect to the parenting and property appeal.
In the event that the Court was not minded to fund provision of any transcript, the mother sought the opportunity to consider the audio recordings to determine whether something less than the whole of the transcript was necessary for her to prosecute each of the contravention appeal and the s 102QB appeal.
It is reasonable that the mother have that opportunity and I therefore ordered that the Registrar facilitate the mother having access to the audio for the contravention application heard on 2 April 2019, and the hearing with respect to the s 102QB order on 10 June 2019, by making an appointment, or multiple appointments as necessary, at the convenience of the Registry for this purpose. The question then of the mother obtaining less than a full transcript of either hearing can be revisited when this matter is reviewed by me on 9 January 2020.
Subpoena issue
One of the mother’s challenges in the parenting and property appeal (Ground 9) concerns the trial judge’s refusal to allow the mother to subpoena the father’s medical records in circumstances where the mother contends that such records would disclose material relevant to the father’s mental health, which in turn the mother contends has relevance to the determination of the children’s best interests.
In her appeal, the mother intends to pursue that challenge but as well seeks to formulate an application for further evidence to be adduced on appeal referable to the father’s medical records.
As was explained to the mother on the hearing of this application it will be entirely a matter for the Full Court hearing and determining these appeals as to whether the mother is permitted to adduce further evidence. Moreover, it was explained to the mother that merely by obtaining records pursuant to a subpoena does not have the consequence that those records will be before the Court.
The mother sought leave to issue a subpoena to Medicare and to medical providers to the husband disclosed by the Medicare records.
It seems to me that fairness dictates that the mother have some opportunity to establish the challenge she seeks to mount on appeal and at least the opportunity to formulate an application for further evidence to be adduced on appeal concerning medical records. However, the application as framed by the mother is far too open-ended in terms of the number of subpoenas that she might seek to have issued and the relevance of any records any identified doctor might be able to provide.
On that basis, leave was given to the mother in the first instance to issue a subpoena to Medicare to obtain details of the identity of medical providers to the father and the question of any further subpoenas can be revisited on the relisting of this part of this application as ordered on 9 January 2020.
The mother also sought to copy medical records of the father’s mother which the mother submitted had already been produced upon subpoena for the trial of the parenting and property proceedings. However, the mother did not establish that the father’s mother had notice of this issue, obviously affecting that person’s rights including her right to privacy. If the mother seeks to pursue this she can do so at the hearing on 9 January 2020 with proof that notice has been given to each of the father and his mother.
Directions for appeals
The Appeals Registrar has made directions to ready the hearing of these appeals including as to the filing by each party of a Summary of Argument for the appeals on scheduled dates.
There is no reason at this stage to make any alteration to the time table set by the Appeals Registrar in the directions made. This is a matter which can be revisited when the application is further considered on 9 January 2020.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 6 December 2019.
Associate:
Date: 6 December 2019
6
2
2