DUTNALL & RALLIN
[2020] FamCAFC 265
•2 November 2020
FAMILY COURT OF AUSTRALIA
| DUTNALL & RALLIN | [2020] FamCAFC 265 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of transcript – Where the applicant seeks an order that the Court provide the trial transcript at its own expense – Consideration of the factors in Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 – No exceptional circumstances which would require the Court to provide the transcript – Application dismissed – Order made to discharge procedural orders to file the transcript. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Vacate hearing date – Where the appeal is against procedural orders – Where the applicant is incarcerated – Limited factual controversy – Requirement for the prompt and efficient disposal of litigation – Application dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Forbes & Bream [2008] FamCAFC 189 Sampson & Hartnett(Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220 |
| APPLICANT: | Mr Dutnall |
| RESPONDENT: | Ms Rallin |
INDEPENDENT CHILDREN’S LAWYER: | John Spence & Associates |
| FILE NUMBER: | SYC | 3232 | of | 2016 |
| APPEAL NUMBER: | EAA | 110 | of | 2020 |
| DATE DELIVERED: | 2 November 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | In Chambers |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | Heard by way of written submissions |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 6 July 2020 |
| LOWER COURT MNC: | [2020] FCCA 2257 |
REPRESENTATION
| APPLICANT: | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: | Sexton Family Law |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | John Spence & Associates |
Orders
The Application in an Appeal for the provision of transcript filed on 12 October 2020 is dismissed.
The Application in an Appeal to vacate the date of the appeal hearing filed on 12 October 2020 is dismissed.
The Application in an Appeal to adduce further evidence filed on 12 October 2020 is adjourned to the appeal hearing.
Orders 2.12, 4, 5 and 6 made by Registrar Cameron on 22 September 2020 are discharged so that the applicant is not required to file a copy of the transcript in Appeal No. EAA 110 of 2020.
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 Dutnall & Rallin 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: EAA 110 of 2020
File Number: SYC 3232 of 2016
| Mr Dutnall |
Applicant
And
| Ms Rallin |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
In longstanding parenting proceedings commenced by Mr Dutnall (“the applicant”), the applicant, on 15 January 2020, issued a subpoena on the school attended by his daughter, Z born in 2005 (“the child”), in which he sought production of various material relating to the child. On 21 February 2020, Ms Rallin (“the respondent”) filed a Notice of Objection in relation to the subpoena.
The applicant’s subpoena seeks material in relation to:
a)the “enrolment, transfer and participation records” of the child (paragraph 2);
b)“any individual or class photographs or video [sic]… showing the child” (paragraph 3);
c)“any correspondences and communications… pertaining to the child” that have been sent to or received by the school from either of the child’s parents, any other person or organisation, and consent and other permission forms permitting the child to travel, go on excursions and attend other similar academic and extracurricular activities (paragraph 4);
d)“any other document or thing pertaining to the behaviour, welfare or protection” of the child and any document relating to “medical issues, scholastic or psychological counselling [and] personal or career guidance” (paragraph 5); and
e)“any other document pertaining to” the child (paragraph 6).
(Emphasis removed)
The respondent’s objection was heard on 6 July 2020 where it was argued that the scope of the subpoena was an abuse of process and none of the documents sought were relevant to any issue between the parties.
The primary judge upheld the respondent’s objection in part with respect to paragraphs 2, 3 and 4 of the applicant’s schedule, and stood over paragraphs 5 and 6 of the schedule to the final hearing (Order 2).
The primary judge declined to grant access to any of the documents in paragraph 2 finding that the applicant was aiming to undertake a “fishing expedition” (at [6]). Her Honour, in relation to paragraph 3 of the applicant’s schedule, noted that the applicant has been convicted of sex offences against children, and is prohibited from accessing photos and videos of the child in an individual or class setting (at [7]). Her Honour also declined the applicant access to any of the documents set out in paragraph 4 on the basis of relevance, noting that the child was a mature and intelligent 15 year old girl who did not want to “express her views” (at [4] and [9]).
In standing over paragraphs 5 and 6 of the schedule to the final hearing, the primary judge stated that the documents may well be relevant, however “it is essentially part of the issue for determination at the final hearing” (at [10]) and this information can be obtained by the Independent Children’s Lawyer, should they decide it necessary for determining the dispute as between the parties (at [11]).
The applicant by his Notice of Appeal filed on 31 July 2020 appeals that order.
Application for the provision of transcript
On 12 October 2020, the applicant filed an Application in an Appeal for the provision of the written and audio versions of the trial transcript and a supporting affidavit.
The respondent and the Independent Children’s Lawyer did not wish to file any submissions as to this application. The respondent sought to rely on the material filed in the settled Appeal Book.
I also note that the applicant, at Order 5 of his application, seeks to adduce further evidence. That application will be considered by the Full Court on the hearing of the appeal.
Only in some limited and exceptional circumstances is the Court able to provide transcript material to the parties for the purposes of an appeal.
Neither in the Family Law Act 1975 (Cth) nor in the Family Law Rules 2004 (Cth) is there a provision for the Court to provide the transcript of proceedings that are the subject of an appeal. In Forbes & Bream [2008] FamCAFC 189 (“Forbes”) the Full Court said:
28.From the inception of the operation of the Family Court in 1976, transcript has not been routinely provided to parties. The cost is not provided for in the budget of the Court, and the cost of doing so routinely, would impinge on other necessary expenditure for the proper operation of the Court…
That is not to say that in exceptional cases the Court may provide a transcript if it was persuaded that it is necessary in the best interests of children and if the parties were impecunious (Forbes at [36]).
In Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542, the Full Court set out a list of factors that it considered relevant to such an application. They were:
16.… 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.
(Emphasis in original)
Here, it is necessary to consider the cost of the transcript and whether the applicant can afford it and the prima facie merits of the appeal.
The applicant, in his affidavit in support of the application for the provision of the transcript filed on 12 October 2020 notes that he is currently incarcerated and is impecunious, living on less than $50 per week. He also says that he has no funds or access to financial resources to meet the cost of the transcript. It is clear that he cannot afford to pay for the transcript even if the primary proceedings seemed to have been quite short and the transcript not extensive.
In relation to the prima facie merits of the appeal, it should be noted that the applicant represents himself and has prepared the grounds of appeal. In short, he argues that the primary judge erred in proceeding to deliver judgment before allowing him to complete his submissions, in finding that the material sought in paragraphs 2, 3 and 4 are not relevant and that it was difficult to ascertain how the material would assist the applicant’s case, and in failing to take into account the legitimate forensic purpose for the applicant to “seek, inspect & utilize” the material sought. The applicant further argues that the primary judge, in standing over paragraphs 5 and 6 of the schedule to the final hearing, had caused “prejudice to the unrepresented [applicant’s] ability to fully & properly prepare on all the available evidence before the [f]inal [h]earing”. The applicant also complains that the primary judge denied him procedural fairness by not conducting the matter on a “level playing field” as he is a self-represented litigant, and the respondent has legal representation.
I simply observe at this stage, that in considering the prima facie merits of the appeal, the primary judge had not made a glaringly apparent error that would lead to the conclusion that the appeal must succeed. This does not mean that the appeal is doomed to fail and is only an observation that I must take into account when considering the necessity of providing transcript material to the parties.
Therefore, I find that there are no exceptional circumstances which would persuade the Court to pay for the trial transcript.
If, during the hearing of the appeal, the Full Court is of the view that a transcript or a part of it was necessary to determine an issue, the Court can, itself, order the transcript.
The applicant says “I do not wish the Appeal to be taken to be abandoned. I wish to proceed with the transcript but will proceed without it if necessary” (Applicant’s affidavit filed on 12 October 2020, paragraph 4).
I will thus dismiss the application for the provision of a transcript, however will make an order discharging the need for the applicant to file a transcript to prosecute his appeal.
Application to vacate date of the appeal hearing
The applicant also seeks an order that the date of the appeal hearing be vacated and that the appeal be listed for hearing two to five weeks from the original hearing date of 17 November 2020.
This is an appeal against procedural orders in relation to the applicant’s access to subpoena material. Whilst a relevant factor to this application is that the applicant is currently incarcerated and is dealing with many obstacles in preparing for the upcoming appeal, it is important for the Court to look at the interests of the parties to the litigation who are waiting for the matter to proceed (Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175).
Based on the limited factual controversy in this appeal, the waste of this Court’s resources if the hearing date of the appeal is vacated, and the need for the Court to ensure the prompt and efficient disposal of litigation, this application will be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 2 November 2020.
Associate:
Date: 2 November 2020