Friscioni & Friscioni (Application for transcript)
[2009] FamCAFC 48
•30 March 2009
FAMILY COURT OF AUSTRALIA
| FRISCIONI & FRISCIONI (APPLICATION FOR TRANSCRIPT) | [2009] FamCAFC 48 |
| FAMILY LAW – APPLICATION IN AN APPEAL – PREPARATION OF APPEAL BOOK – Where Applicant sought an order that the Regional Appeals Registrar prepare the appeal book – Where Applicant asserts impecuniosity, lack of expertise and difficulties associated with residence in a remote location – ‘Exceptional circumstances’ not established – Application refused FAMILY LAW – APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Where Applicant sought that the Court provide at its cost the transcript of the trial – Where grounds of appeal as currently drafted suggest a possibility that some portion of the transcript may be required – Where Applicant asserts impecuniosity – Where no evidence adduced of Applicant’s current income – Where Applicant could obtain a sound recording of the proceedings at minimal cost and thus isolate the necessary parts of the transcript – Application refused FAMILY LAW – COSTS – No order was made as to costs |
| Family Law Rules 2004 (Cth) r 22.18 and 22.20 |
| Forbes & Bream [2008] FamCAFC 189 |
| APPLICANT: | Mr Friscioni |
| RESPONDENT: | Ms Friscioni |
| INDEPENDENT CHILDREN’S LAWYER: | Wendy Lehmann |
| FILE NUMBER: | CSC | 445 | of | 2008 |
| APPEAL NUMBER: | NA | 14 | of | 2009 |
| DATE DELIVERED: | 30 March 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland, O’Ryan & Le Poer Trench JJ |
| HEARING DATE: | 19 March 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 2 February 2009 |
| LOWER COURT MNC: | [2009] FamCA 45 |
REPRESENTATION
| ADVOCATE FOR THE APPLICANT: | Mr Friscioni appeared in person |
| SOLICITOR FOR THE RESPONDENT: | Ms Reaston, O'Reilly Stevens Bovey |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Benson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Lehmann Featherstone |
Orders
That the father’s Application in a Case filed 19 March 2009 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Friscioni & Friscioni (Application for transcript) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: NA 14 of 2009
File Number: CSC 445 of 2008
| Mr Friscioni |
Applicant
And
| Ms Friscioni |
Respondent
REASONS FOR JUDGMENT
Introduction
On 19 March 2009 we heard the father, Mr Friscioni’s appeal against orders made by Moore J on 17 March 2009. Her Honour dismissed the father’s application for a stay of orders made on 2 February 2009 which permitted Ms Friscioni (“the mother”) to remove the parties’ only child, K, from Australia to live in the Czech Republic.
At the same time as we heard the stay appeal we heard the father’s application filed on 19 March 2009 in which he sought orders that the Court provide to him “copies of all the transcripts relating to the case, the books of appeal and also the index, which I cannot supply due to financial hardship and time restraints as well as my current geographical location”.
We clarified at the hearing that what was sought by the father was an order that the Regional Appeal Registrar prepare his appeal books for his appeal filed 2 March 2009 against Orders 1-5 of the orders made by Moore J on 2 February 2009. Further, he sought that the Court should provide transcript of the proceedings before Moore J on 4, 5 and 12 December 2008. We note that the parties’ applications were before the trial Judge on 12 January 2009, but it appears that only property matters were dealt with on the latter date. There is no challenge by the father to the property orders.
The father’s appeal is an appeal in a parenting matter colloquially known as “an international relocation decision”.
Background
We have, in our stay judgment, set out relevant background material. However, it is useful the purposes of this application that we repeat paragraphs 12-14 of the trial Judge’s reasons:
12.[Ms Friscioni] (34) was born in the CR. She came to Australia in 1997 with a view to staying temporarily while she studied English. [Mr Friscioni] (40) was born in Italy and came to Australia as a young child with his family who settled in Sydney. They met in Sydney in 1997 while working in the same restaurant. She fell pregnant and their relationship took a different turn. In May 1998 they travelled to … the CR, where the mother is from, and they married there [in] August 1998. Their daughter, [K], was born there [in] November 1998. They returned to Australia shortly after her birth and went to live [at T in far north Queensland]. [Mr Friscioni’s] mother, who was living there, had arranged employment for him. They have now lived there for a decade.
13.In that time [Ms Friscioni] and [K] have returned each year to the CR for a number of weeks and they lived in [the mother’s home town] for a year in 2006/07 when [Ms Friscioni] worked and [K] attended school. [Mr Friscioni] has either accompanied them or joined them for part of the time during the annual visits. As for the long stay in 06/07, he accompanied them initially but he returned to [their home in T] for a few months before again joining them in [the mother’s home town]. They purchased an apartment in [the mother’s home town] during this time. They returned to Australia in July 2007 but they separated shortly afterwards on 31 October 2007.
14.Since the separation they have agreed about [K’s] arrangements to a point – she has lived primarily with her mother and has spent time regularly with her father.
Evidence in support of this application
The father relies on his affidavit affirmed on 19 March 2009. The father’s evidence is brief. We set it out in full:
1. I … AM CURRENTLY AND HAVE BEEN UNDER IMMENSE FINANCIAL STRAIN SINCE MY SEPERATION [sic] WITH [MS FRISCIONI] AS IT HAS BEEN HARD TO MAINTAIN MY USUAL PROFESSION […] DUE TO MY INNABILITY [sic] TO BOTH PROVIDE CARE FOR [K] AND UPHOLD A FULL TIME JOB. IT IS ONLY THROUGH THE GENEROSITY OF MY FRIENDS AND FAMILY THAT I HAVE BEEN ABLE TO REPRESENT MYSELF THROUGH OUT [sic] THIS CASE AND NOT HAVE TO RETURN TO WORK.
2. THE PERSON THAT BEGAN ASSISTING ME THROUGH THIS CASE HAS FALLEN CHRONICALLY ILL AT THE ELEVENTH HOUR AND IS UNABLE TO ASSIST IN THE CASE FOR NOW AND THE FORESEEABLE FUTURE WHILST THEY SEEK FURTHER MEDICAL ASSISTANCE. THIS HAS PUT ME IN A POSITION WHERE I AM COMPLETELY REPRESENTING MYSELF AND THAT IS A VERY DAUNTING TASK AS I AM COMPLETELY UNFAMILIAR WITH THE LEGAL SYSEM WITHIN THE FAMILY LAW.
3. DUE TO THE FINANCIAL STRAIN I HAVE PUT UPON MY FAMILY AND FRIENDS IT IS UNFAIR OF ME TO EXPECT THEM TO TAKE THE ADDITIONAL FINANCIAL BURDEN OF THE TRANSCRIPTS, THE APPEAL BOOKS AND INDEX OF APPEALS. TO ASSIST ME IN FURTHERING MY APPEAL THROUGH THE FAMILY COURTS. THIS IS MY LAST RESORT AND I HAVE NO OTHER OPTION OTHER THAN TO APPEAL TO THE BRISBANE FAMILY REGISTER [sic] TO SUPPLY THESE DOCUMENTS UNDER COMPASIONATE [sic] REASONS.
4. IF I AM GRANTED ASSISTANCE FROM THE BRISBANE FAMILY REGISTER [sic] BY SUPPLYING THESE SUPPORTING DOCUMENTS IT WOULD GREATLEY [sic] IMPROVE MY ABILITY TO BRING TRANSPARENCY TO THE COURT ON WHAT HAS HAPPENED PREVIOUSLY AND ALLOW ME TO PUT FORWRARD MY CASE CLEARLY AND IN A MUCH MORE TIMELY AND ORGANISED MANOR [sic].
5. I BELIEVE THAT IF I WAS GRANTED THESE SUPPORTING DOCUMENTS BEING THE TRANSCRIPTS, APPEAL BOOKS AND THE INDEX OF APPEALS IT WOULD FURTHER MY ABILITY OBTAIN [sic] JUSTICE THROUGH THE FAMILY COURTS.
Preparation of appeal books
In his submissions in support of his application for the Regional Appeal Registrar to prepare the appeal books, the father submitted he faced difficulties because of his residence in remote far north Queensland. However, he conceded he had a computer, printer and photocopier, as well as access to a facsimile facility. He also conceded that copies of all relevant documents had been sent to him by the Independent Children’s Lawyer (“the ICL”).
Relevant provisions of the family law rules 2004
Rule 22.18 of the Family Law Rules, 2004 (“the rules”) provides as follows:
(1) The appellant or, if so ordered, the cross-appellant is responsible for preparing the appeal books, including arranging to obtain any transcript required to be included in the appeal books.
(2) If a Judge or Regional Appeal Registrar is satisfied that preparing the appeal books would impose exceptional hardship on the appellant, the Judge or Regional Appeal Registrar may order either of the following to prepare the appeal books:
(a) a respondent;
(b) the Regional Appeal Registrar.
Note If the Regional Appeal Registrar prepares the appeal books, the appellant or cross-appellant (if so ordered) is still responsible for obtaining the transcript (see rule 22.27).
(3) When making an order under subrule (2), the court may order the appellant to pay the costs of preparing the appeal books.
Note 1 The party filing the appeal books must file and serve the number of copies ordered to be filed (see paragraph 22.17 (2) (c)). The number to be filed will include enough copies for each member of the Full Court. In addition, the number required to be served will be 2 copies for each other party.
Note 2 A party may apply for an extension of time (see rule 1.14).
Note 3 If a party fails to comply with the requirements for filing and serving the appeal books, the appeal is taken to be abandoned (see rule 22.21). [our emphasis]
Rule 22.20 deals with the form of appeal books and provides as follows:
(1) Each volume of the appeal books must have:
(a) a title page stating:
(i) the names of the parties to the appeal;
(ii) the court where the order appealed from was made; and
(iii) the address for service of each party; and
(b) an index stating the documents included in the appeal books, and the date and page number of each document.
(2) The appeal books must include a certificate signed by the person who prepared them, certifying that the books have been prepared in accordance with these Rules and the orders made at the procedural hearing.
(3)The documents in the appeal books must be arranged in the following order:
(a) the Notice of Appeal;
(b) the order appealed from;
(c) reasons for judgment;
(d) any relevant previous or subsequent order;
(e) each relevant application;
(f) any relevant response;
(g) relevant affidavits;
(h) any family or expert report received in evidence in the case that is relevant to the appeal;
(i) a list of exhibits and each relevant exhibit (if practicable);
(j) the relevant parts of the transcript;
(k) if the appeal involves a challenge to the exclusion of evidence — the document that is the subject of the challenge.
(4) The pages of the appeal books, including the transcript, must be numbered consecutively.
(5) The appeal books must be securely fastened to make 1 or more volumes, each of which is no more than 25 mm thick.
(6) Each page in an appeal book must comply with the requirements for documents mentioned in subrule 24.01 (1).
Note The Regional Appeal Registrar may refuse to accept the books for filing if they do not comply with these Rules or an order.
Discussion
As a result of the stay appeal we have had the advantage of reading the reasons of the trial Judge published on 2 February 2009, as well as access to the father’s Notice of Appeal filed on 2 March 2009.
At paragraph 134 of the trial Judge’s reasons, she noted that parties were the owners of a property in the mother’s home town in the Czech Republic which they purchased in late 2006 for $102,300.00. An amount of $11,000.00 was outstanding by the parties to the mother’s parents for a loan used to secure the property.
At paragraph 138 of her reasons, the trial Judge noted it was the father’s case that the parties had received financial support from his mother and that they were indebted to her in the sum of $14,000.00. The trial Judge also noted, at paragraph 141, the mother’s assertion that, at the date of the parties’ separation, she transferred $19,000.00 to the father. The trial Judge explained that the father had paid child support for a period around March 2008 and subsequently his child support liability was reduced to zero. Her Honour recorded, at paragraph 143, that the husband had borrowed funds during the course of the proceedings, and with credit card debts, he had estimated debts of between $10,000.00 and $12,000.00. Her Honour concluded that the father retained, after the property adjustments proposed to be made by her, assets (including his superannuation and savings retained after separation) totalling $48,000.00.
When discussing s 75(2) factors, at paragraph 155 of her reasons, the trial Judge found that:
…neither has any health issue identified as impeding their capacity to engage in employment and support themselves and their daughter in the future. Both have skills and experience which equips them for the workforce. [Mr Friscioni] can earn better money than he is at the moment, not only by increasing his hours from 20 per week but by working as a chef…
We accept that when the father’s debts are taken into account that his remaining assets comprise essentially his superannuation which is not readily accessible to him, his car and jet ski which are of modest value. However, he provided no details of any income currently being earned or any evidence of being unable to obtain employment as a chef or otherwise.
We accept that the father’s residence in far north Queensland means he lives in a remote community and he is not able to physically visit the Cairns Registry of the Court without incurring considerable expense. Balanced against this fact, as we have already noted, in his submissions he acknowledged that he has ready access to a computer and printer (albeit he asserted he had to wait for ink/toner to be ordered from the south of T), as well as access to a photocopier. The ICL has provided him with copies of relevant documents, including affidavits. The father did not suggest he did not have available to him any document which was before the trial Judge. We could readily understand if the father did not have copies of all documents which were before the trial Judge the difficulties he could experience, both in time and money in travelling from his home to the Cairns Registry to obtain such copies. But this is not the case.
We are of the view the father has not satisfied us to the requisite standard that there are “exceptional circumstances” which require the Regional Appeal Registrar to prepare his appeal books.
Transcript
Before us, the father asserted that he had made enquiries from the transcript provider and the cost of providing transcript for the whole trial would be approximately $5,000.00, or $300.00 per page. He said he had obtained the assistance of a “pro bono” barrister, who had advised him to obtain the whole of the transcript of the proceedings before the trial Judge.
In considering the father’s application to be provided with transcript at the Court expense it is necessary that we refer to the relevant principles to be applied by a Full Court, or a single Judge in so ordering.
In Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189 the Full Court (Bryant CJ, Boland and Stevenson JJ) dealt with an application by a self represented appellant to be provided, at the Court’s expense, transcript of proceedings before a Federal Magistrate in a child support matter. At paragraph 28 of their reasons, the Full Court noted:
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. Thus in hearings of matters at first instance parties will be responsible for the cost of transcript if they wish to obtain it. However, the Court has from time to time judiciously provided transcript to parties where it is demonstrably in the interests of justice to do so. A common example is the provision of transcript of the evidence of an expert witness in a parenting case.
Their Honours went on to explain there was no legislative basis in the Family Law Act1975 (Cth) (“the Act”), or the rules, which provided for transcript to be made available by the Court. Their Honours referred to the former r 22.24 (now r 22.18) and noted that that provision for the preparation of appeal books still requires an appellant to obtain the transcript. As in this case, the father in the case under discussion by the Full Court asserted he was impecunious and could not afford transcript. The Court referred to the small number of authorities in the Court which have discussed the question of transcript. At paragraphs 35 and 36 of their reasons, the Full Court said:
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. [our emphasis]
It is necessary that we conduct some examination of the father’s proposed grounds of appeal, and consider whether it is necessary to have transcript to agitate those grounds.
In his Notice of Appeal filed 2 March 2009 the father sets out seven grounds of appeal as follows:
1. THAT HER HONOURS [sic] FINDINGS OF FACT IN PARA 29 AND 42 THAT [MR FRISCIONI] ENGAGES IN EXCESSIVE MARIJUANA USE IS NOT SUPPORTED BY EVIDENCE, AND WAS CONTRADICTED IN EVIDENCE BY A NEGATIVE SUPERVISED DRUG TEST, A TEST INSTITUTE [sic] BY THE COURT.
2. THAT THE JUDGE ERRED IN HER FINDING OF FACT IN PARAS 11, 109 & 111, THAT IN AFFECT [sic] REJECTED THE FINDINGS OF THE FAMILY REPORT OF THE COURT APPOINTED COUNSELLOR.
3. THAT HER HONOUR ERRED IN LAW AND FACT BY ACCEPTING DR [S’S] EVIDENCE IN PARA 34 CONCERNING [MR FRISCIONI’S] ALCOHOL AND MARIJUANA USAGE, WHEN THAT EVIDENCE IS NOT SUPPORTED IN FACT AND WAS GIVEN WITHOUT THE PERMISSION OF [MR FRISCIONI], IN VIOLATION OF PRIVELEGE [sic].
4. THAT THE JUDGE ERRED IN FACT IN PARA 25 BY GIVING IMPLICIT SUPPORT FOR A FINDING THAT EDUCATION WAS BELOW STANDARD [IN T] FOR A NON INDIGENOUS STUDENT.
5. THAT THE JUDGE ERRED IN A FINDING OF FACT IN PARA 30 THAT [MR FRISCIONI] SMOKED MARIJUANA REGUALY [sic] WITH HIS MOTHER AND OTHERS, IN PARTICULAR THAT HIS MOTHER GAVE UNCONTESTED SWORN EVIDENCE IN THE TRIAL THAT SHE HAD NOT SMOKED MARIJUANA IN A YEAR, WICH [sic] THE JUDGE FAILED TO NOTE OR CONSIDER IN HER JUDGEMENT.
6. AS A RESULT OF HER INCORRECT FINDINGS OF FACT AS SPECIFIED IN APPEAL POINT 5, HER HONOUR IN PARA20 INCORRECTLY EXCESIED [sic] HER DISCRETION WHEN CONSIDERING THE MOTHER AND [MR FRISCIONI] SHARING [MR LE’S] ACCOMODATION [sic].
7. THAT HER HONOUR ERRED IN FACT IN PARA 56 WHEN SHE WAS DISMISSIVE OF [MR FRISCIONI’S] SWORN EVIDENCE AS TO HIS PREPAREDNESS TO RELOCATE TO CAIRNS FOR THE BENIFET [sic] OF [K], AND FURTHER MORE [sic] HAD NO BASIS OF FACT IN EITHER EVIDENCE OR HER DISCRETION IN FINDING THAT [MR FRISCIONI] SAW HIS FUTURE AS [IN T] WICH [sic] PROVIDED A LIFESTYLE HE ENJOYED.
It appears that ground 1 asserts that the trial Judge’s findings were not supported by the evidence, and that her Honour did not give any weight to a negative supervised drug test. It is not clear from the ground as pleaded whether the father seeks to rely on evidence adduced in cross-examination on this topic, or the evidence in chief. If the latter, he would not require transcript. This ground does not suggest to us that the father would require the whole of the transcript of the proceedings before the Court to support this ground.
Ground 2 asserts that the trial Judge erred in findings of fact made in paragraphs 11, 109 and 111 of her Honour’s reasons for judgment. In paragraph 11 the trial Judge simply states that the Family Report writer’s evidence was helpful, but other evidence indicated a different result. In paragraphs 109 the trial Judge sets out the ICL’s submissions about the weight which the report writer gave to the impact of the mother being required to stay living in T and in paragraph 111 the trial Judge found that the report writer had not given sufficient weight to the supports the mother had available to her in the Czech Republic. These are matters which may be apparent from examination of the Family Report itself, or which may require a limited extract of the transcript dealing with cross-examination of the Family Report writer.
Ground 3 asserts error in law and fact by the trial Judge accepting Dr S’s evidence concerning the father’s alcohol and marijuana usage when that evidence was not supported by fact “and was given without the permission of [Mr Friscioni] in violation of privelege [sic]”. We note before the trial Judge the father was represented by counsel who could, if appropriate, have objected to the admission of Dr S’s evidence. It is unclear to us whether any objection was taken to Dr S’s evidence, and we accept that transcript may be necessary to deal with that aspect of the father’s case. However, it appears that the father confuses client privilege under Part 3.10 of the Evidence Act1995 (Cth) with confidentiality attaching to medical records.
Without commenting on the likely merits of grounds 4, 6 and 7 these do not appear to us to be matters which would require the provision of transcript.
We accept the grounds, as pleaded, indicate that the father may require portions of the transcript for the purpose of properly agitating his grounds of appeal. However, the evidence before us does not support a finding that the father could not afford to obtain a CD of the sound recording of the trial. We note that such a CD can be provided by the Court’s transcript provider at minimal cost. The father may then isolate the portions of the transcript necessary to properly agitate his grounds of appeal. There is nothing to prevent the father then, if he wishes to do so, making further application to the Court, including, if appropriate, the Full Court hearing his appeal, for the provision of those parts of the transcript he submits it is necessary to be available to the Court in order to arrive at a result in the best interests of the child.
In coming to this conclusion we consider that the Regional Appeal Registrar when conducting the procedural hearing to settle the appeal book index and to make other necessary orders for the conduct of the appeal may dispense with the necessity for the inclusion of transcript in the appeal book. But the father must be aware of the difficulty he will face if prosecuting his appeal without relevant parts of the transcript.
We also take this opportunity to record we pointed out to the father that he could file an application in an appeal seeking orders that his appeal be expedited, and that sittings of the Full Court in Brisbane are likely to occur during the first long school holiday period (July-August 2009) when the child will be in Australia pursuant to the trial Judge’s orders.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 30 March 2009
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