DeLuca and Farnham - [2018] FamCAFC 246

FAMILY COURT OF AUSTRALIA

DELUCA & FARNHAM

[2018] FamCAFC 246

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Dispense With Full Transcript – Review of Registrar’s orders – Where leave is granted for the appeal to be heard without the requirement to include all transcripts of the trial proceedings in the appeal books.

APPLICANT:

Ms DeLuca

RESPONDENT:

Mr Farnham

INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

FILE NUMBER:

SYC

5417

2013

APPEAL NUMBER:

100

2018

DATE DELIVERED:

14 December 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

5 December 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

22 June 2018

LOWER COURT MNC:

[2018] FamCA 548

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lioumis

Orders

That the appellant be permitted to proceed with her appeal without having included in the appeal books:
(a)the transcript of proceedings dated 28, 29 and 30 November 2017 as identified in paragraph 15 of the applicant’s affidavit filed on 19 November 2018 and the transcript of the cross-examination of Mr M; and
(b)annexure ‘M’ to the respondent’s trial affidavit filed on 2 November 2017.
The appellant is only required to serve a second copy of the appeal books on the respondent if a solicitor files a Notice of Address for Service in the appeal and must provide the second set of appeal books within seven (7) days of said notice.
The costs of the Application in an Appeal filed on 19 November 2018 and the Response to an Application in an Appeal will be costs in the appeal.
The Application and Response referred to in the above order (Order 3) be otherwise dismissed.

IT IS NOTED:
(A)That the respondent withdraws his application for Order 3 as contained in his Response filed on 3 December 2018.

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 DeLuca & Farnham 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 SYDNEY

Appeal Number: EA 100 of 2018
File Number: SYC 5417 of 2013

Ms DeLuca

Applicant

And

Mr Fanham

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

By an Application in an Appeal filed on 19 November 2018, Ms DeLuca (“the applicant”) seeks orders that her appeal (EA 100 of 2018) be heard and determined without the full trial transcript, which occurred over ten days between 27 November 2017 and 27 February 2018. Further, the applicant seeks to amend, as required, the orders of the Registrar dated 26 September 2018 directing her to include in the appeal books: the affidavit of Mr Farnham (“the respondent”) filed on 2 November 2017 (Order 1.14); and the respondent’s affidavit filed by on 14 November 2017 (Order 1.15). The applicant also seeks to vary Order 4.3 so that unless the respondent obtains legal representation, she is only required to serve one copy of the appeal books on him. The applicant seeks an order for costs. The respondent opposes the application, as well as the appeal.
The applicant’s appeal is against several final parenting orders made on 22 June 2018 that concern the parties’ children, X born 2009 and C born 2013 (collectively “the children”).
Inter alia, the trial judge ordered that the applicant have sole parental responsibility for the children (Order 2) and for the children to live with her (Order 7).
Essentially, the applicant appeals against orders that require her to notify the respondent of a change of residential address (Orders 3-5), the day of the week for telephone communication with the respondent (Order 14), the respondent’s ability to nominate a makeup time in the event that either child is unable to attend because of illness (Order 29), and orders that prevent the parties from removing the children from Australia without a consent order (Order 34) and for the children to be placed on an Australian Federal Police watchlist until March 2027 (Order 35).
Procedural orders dated 26 September 2018 directed the applicant to provide an electronic copy of the transcript of 27, 28, 29 & 30 November 2017 and 1 December 2017 and 19, 20, 21, 23 and 27 February 2018 (Order 1.25); and for the appeal books and electronic transcripts to be filed and served by 21 November 2018 (Order 4).
The applicant deposes in her affidavit of 19 November 2018 that her financial situation has prohibited her from obtaining the full transcript of the trial. In any case, the applicant is confident that she can present her argument without relying on the full transcript. The applicant deposes that she has obtained, and seeks to rely upon only the parts of the transcript containing oral evidence relevant to her grounds of appeal.
It should be noted that the Court has already provided the parties with several extracts from the transcript of proceedings, including:
a)19 February 2018 from 10.11 am to 4.20 pm;
b)21 February 2018 from 10.08 am to 10.54 am;
c)23 February 2018 from 12.43 pm to 4.10 pm; and
d)27 February 2018 from 10.35 am to 11.50 am.
The applicant understands that proceeding without the full transcript may make success in the appeal more difficult, but that is a risk she is willing to run.
Further, the applicant seeks to dispense with the requirement to include annexure ‘M’ to the affidavit of the respondent dated 2 November 2018 and the entirety of the affidavit of the respondent dated 14 November 2018. In relation to Annexure M, the applicant deposes that these items are irrelevant, do not relate to the orders under appeal and would amount to an additional volume of appeal books. The material is clearly irrelevant and should not be included in the appeal books.
Nothing was said about the affidavit of 14 November and there is thus no basis for it be excluded.
By a Response to this Application in an Appeal filed on 4 December 2018, the respondent opposes the application. The respondent also seeks to dismiss the appeal and seeks an order to prevent the applicant from making any further applications in the appeal (which he later withdrew). I note also that in the respondent’s affidavit of 3 December 2018 that he suggests an order for security of costs in the amount of $35,000 is appropriate. However, an application has not been made for this order and the issue will not be dealt with.
The respondent deposes in his affidavit of 3 December 2018 that the applicant should be required to provide the full transcript of the trial. In any case, the respondent argues that the appeal lacks any prospect of success.
In relation to the order sought by the applicant to provide the respondent with one instead of two copies of the appeal books, the respondent deposes that he may engage legal representation, thus requiring a second set of appeal books. Given that the respondent ran the trial without legal representation and he says he has no income or property which could be utilised to pay a lawyer, it seems unlikely he will have legal representation for the appeal. The appropriate course is that if a lawyer files a Notice of Address for Service for him, only then is a second set of appeal books to be served.
The Independent Children’s Lawyer (“the ICL”) says that a full transcript is required.
I am content to review the Registrar’s decision and allow the applicant to advance her appeal without provision of the full transcript of proceedings at first instance. I take into account that the primary judge made extensive findings in relation to the oral evidence, none of which seem to be under challenge. It seems to me that the limited scope of the appeal lends itself to the course proposed by the mother. Of course parties are encouraged to only include in the appeal books the trial material relevant to the matters at issue in the appeal.
As to the affidavit of 14 November, it is likely that it has not been included in the appeal books which have already been prepared (and which the husband took possession of on 5 December 2018 at court). Rather than require a supplementary appeal book be filed for that additional document, it can be presented at the hearing and made an exhibit in the appeal.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 14 December 2018.

Associate:

Date: 14 December 2018