Fullmer & Omeros

[2022] FedCFamC1A 6

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Fullmer & Omeros [2022] FedCFamC1A 6

Appeal from:

Fullmer & Omeros (No 4) [2021] FedCFamC2F 319

Appeal number(s):

NAA 75 of 2021

File number(s):

MLC 7203 of 2016

Judgment of:

AUSTIN J

Date of judgment:

31 January 2022

Catchwords:

FAMILY LAW – APPEAL – Application in an Appeal – Relief from obligation to file transcript – Where the appellant seeks relief on the basis that he is unemployed and cannot afford the cost – Where the respondent opposed the application – Where the appellant asserted oral evidence of witnesses was important to the prospects of the appeal’s success, but still pressed his application – Where the appellant cannot be ordered to procure and file transcript which the evidence shows he cannot afford – Order made – Any requirement for the appellant to file in the appeal a transcript of the proceedings before the primary judge is dispensed with.

Legislation:

Family Law Act 1975 (Cth) s 70NBA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.19(4), 13.22(2)

Number of paragraphs:

12

Date of hearing:

31 January 2022

Place:

Newcastle

Counsel for the Appellant:

Litigant in person

Counsel for the Respondent:

Litigant in person

ORDERS

NAA 75 of 2021
MLC 7203 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR FULLMER

Appellant

AND:

MS OMEROS

Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	31 JANUARY 2022

THE COURT ORDERS THAT:

1.Orders 2, 3 and 4 made by the Appeal Registrar on 18 January 2022 are discharged.

2.Any requirement under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) for the appellant to file in the appeal transcript of the proceedings before the primary judge on 20 and 24 August 2021 is dispensed with.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fullmer & Omeros has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. The father appeals from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 5 November 2021 determining the Application-Contravention he brought against the respondent mother on 4 March 2021.

2. The Application-Contravention was intended to sanction the mother for multiple alleged contraventions, without reasonable excuse, of parenting orders previously made between the parties on 6 March 2019 in respect of their only child. The Application initially comprised 27 counts (at [2(h)]), but many counts were summarily dismissed or struck out by interlocutory orders and so only the first eight counts remained and were the subject of the hearing before the primary judge (at [2(j)], [2(l)], [4] and [6]).

3. Her Honour dismissed the first six counts (at [72], [76] and [78]), but sustained the seventh and eighth counts (at [85]–[87]). In respect of the two proven counts, the primary judge thought it inexpedient to impose any sanction upon the respondent (at [92]).

4. The enforcement dispute concerned two issues: first, the child’s failure to spend time with the father due to the parties’ disagreement over the location of the changeover venue; and secondly, the child’s failure to communicate electronically with the father on Sundays. The primary judge considered that, even though no sanction should fall upon the respondent, to avoid the prospect of further conflict over the operation of the substantive parenting orders, power should be exercised under s 70NBA of the Family Law Act 1975 (Cth) to amend the existing orders in so far as they purported to address those two contentious issues (at [17] and [93]).

5. To that end, the primary judge made orders providing for:

   (a)the child to instead communicate with the parties “at reasonable times” (Order 4);

   (b)variation of the former order related to the changeover venues to be more prescriptive (Order 5); and

   (c)otherwise, the dismissal of the appellant’s Application-Contravention (Order 6)

6. The appellant appealed from only those three orders.

7. On 27 January 2022, the appellant filed an Application in an Appeal seeking relief from his obligation to file in the appeal the transcript from the proceedings below. His current obligation to file such transcript arises from rr 13.19(4) and 13.22(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and procedural orders made by the Appeal Registrar on 18 January 2022 (Orders 2–4).

8. Relief from that obligation is sought on the basis of the appellant’s penury. He adduced evidence via his affidavit filed on 27 January 2022 that he is unemployed and cannot afford the cost of any transcript, the cost of which he has investigated to be $2,534 for the two days of hearing before the primary judge. The respondent doubted the veracity of such evidence about his financial circumstances, but she was not in a position to rebut it.

9. The grounds of appeal currently pleaded by the appellant do not specifically correlate with any of the three appealed orders and compendiously allege the primary judge:

   •…made a decission based on wrong principle, influenced by extraneous and irrelevant comments from the respondent…

   •…mistook the facts…

   •Failed to take into account some relevant evidences, declarations, matters…

   •Placed innappropriate weight on irrelevant observations against the [appellant]…

   •…taken a decission based on wrong false accusations…

   (As per the original)

10. Those grounds of appeal are elaborated by other assertions about the primary judge being misled by the respondent’s mendacity, which assertions appear to be the mainstay of the appellant’s complaints. Obviously enough, if the appellant relies upon some aspect of the respondent’s oral evidence during the hearing before the primary judge to vindicate his arguments in the appeal about the respondent’s evidence being deliberately (or even inadvertently) false, then the task of succeeding with the appeal will be much more difficult without the transcript of her evidence. That is particularly so if he seeks to contrast her evidence given before the primary judge with her evidence given in other proceedings before other courts in 2018 and 2019, as the grounds of appeal tend to imply.

11. The appellant confirmed that both parties and one other witness gave evidence before the primary judge on 20 August 2021, with final submissions made on 24 August 2021. Although the appellant asserted the oral evidence of all three witnesses was important to the prospects of his success with the appeal, he still pressed his application for relief from having to file the transcript in the appeal. If the transcript really is important to the appeal, the appellant seemed not to understand how the success of his application would tend to thwart the appeal, despite best efforts to explain it to him.

12. The application must succeed on the evidence before the Court. The appellant cannot be ordered to procure and file a transcript which the evidence shows he cannot afford, but the appellant must bear the consequences of his application. If, conversely, the transcript is really of no value in the appeal then its absence will cause no harm.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin delivered on 31 January 2022.

Associate:

Dated:       31 January 2022