EAGLE & SCARLETT
[2020] FamCAFC 68
•1 April 2020
FAMILY COURT OF AUSTRALIA
| EAGLE & SCARLETT | [2020] FamCAFC 68 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of transcript – Where the father seeks an order that the court provide the transcript of the proceedings before the primary judge – Consideration of the factors in Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 – Application allowed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Forbes & Bream [2008] FamCAFC 189 Sampson & Hartnett(Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220 |
| APPELLANT: | Mr Eagle |
| RESPONDENT: | Ms Scarlett |
| THE INDEPENDENT CHILDREN’S LAWYER | JLM Family Lawyers |
| FILE NUMBER: | PAC | 2781 | of | 2016 |
| APPEAL NUMBER: | EAA | 6 | of | 2020 |
| DATE DELIVERED: | 1 April 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 24 March 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 December 2019 |
| LOWER COURT MNC: | [2019] FCCA 3584 |
REPRESENTATION
| THE APPLICANT: | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: | Reid Legal Pty Ltd |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | JLM Family Lawyers |
Orders
The Family Court of Australia pay for and provide to the parties a copy of the transcript of the evidence of each of the parties and the Family Consultant.
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 Eagle & Scarlett 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 6 of 2020
File Number: PAC 2781 of 2016
| Mr Eagle |
Appellant
and
| Ms Scarlett |
Respondent
and
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Mr Eagle (“the father”) appeals final parenting orders made by a judge of the Federal Circuit Court of Australia on 13 December 2019. Her Honour ordered that Ms Scarlett (“the mother”) have sole parental responsibility for the parties’ child X (“the child”) who was born in 2015; that the child live with her and that the child spend no time with the father.
By an Application in an Appeal filed on 18 March 2020 the father seeks an order that the court pay for and provide the transcript of the final hearing heard before the primary judge for the hearing dates 27, 28, 29 May and 17 June 2019.
The father says that he is a pensioner and contends that he cannot afford the cost associated with the provision of the transcript.
The father represents himself and has prepared the grounds of appeal. In short, he contends that the primary judge mistook the facts and made factual errors. The grounds challenge the primary judge’s acceptance of the mother’s evidence, appear to challenge the findings of fact and the weight the primary judge gave to certain evidence and the complexion her Honour put on that evidence. Principally, however, the father contends that the primary judge wrongly rejected the opinion of the Family Report writer, and formed her own conclusion about the father’s mental health, a matter requiring expertise which the primary judge did not possess.
Both the mother and the Independent Children's Lawyer appeared on the application and each supported the application arguing that the transcript was important to the father’s appeal. The mother is in receipt of Legal Aid as, obviously is the Independent Children's Lawyer.
Her Honour’s reference to the opinion of the psychologist is brief, her Honour gave that report little to no weight because it “was not based on a full disclosure of relevant facts” and she was not called to give evidence (at [99]).
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 at [28] the court said:
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.
In Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 (“Sampson”) the Full Court of the Family Court of Australia 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 the original)
The Court is more likely to provide the transcript in a parenting case, but even so, careful consideration of the grounds of appeal is required (Sampson at [27]).
The estimated cost of the complete transcript of the proceedings before the primary judge is $7,040. The evidence satisfies me that the father does not have the means to purchase it.
This case is unusual. All parties urge the Court to provide the transcript, and each party agrees that the transcript is necessary to the prosecution of the father’s appeal. Both the solicitor for the mother and for the Independent Children's Lawyer took part in the hearing before the primary judge. None of the other parties is in a position to fund it.
It is also relevant to the consideration of this issue that from 2 December 2016, the father began spending time with the child for four hours three times each week. While the mother made complaints about the father’s conduct towards her and her other children, the contact continued up to and after the hearing including the six months in which her Honour’s decision was reserved. Her Honour’s orders had the effect of completely terminating the father’s contact with the child.
Those matters persuade me that in this case it is appropriate for the Court to provide the transcript although in a limited form in that I propose to order that the transcript of the evidence of the mother, father and Family Consultant be obtained and provided to the parties.
The application will thus be allowed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 1 April 2020.
Associate:
Date: 1 April 2020
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