Herriot & Howes (No. 2)
[2021] FamCAFC 84
•1 June 2021
FAMILY COURT OF AUSTRALIA
Herriot & Howes (No. 2) [2021] FamCAFC 84
Appeal from: Herriot & Howes [2020] FCCA 3483 Appeal number(s): NOA 4 of 2021 File number(s): BRC 32 of 2014 Judgment of: TREE J Date of judgment: 1 June 2021 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Where the father seeks the Court to provide transcript of the hearing or alternatively to dispense with the requirement to provide transcript – No exceptional circumstances to militate an order that the Court provide transcript – Where the grounds of appeal can be adequately addressed without transcript – Application to dispense with transcript granted – No order as to costs. Legislation: Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) rr 1.12, 22.18
Cases cited: Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220
Division: Appeal Division Number of paragraphs: 35 Date of hearing: 4 May 2021 Place: Cairns The Applicant: Litigant in person Counsel for the Respondent: Mr Baston Solicitor for the Respondent: Hofstee Lawyers ORDERS
NOA 4 of 2021
BRC 32 of 2014APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR HERRIOT
Applicant
AND: MS HOWES
Respondent
ORDER MADE BY:
TREE J
DATE OF ORDER:
1 JUNE 2021
THE COURT ORDERS THAT:
1.Order 4 of the orders made by a Registrar on 8 February 2021, be discharged insofar as it requires the applicant father to obtain and file transcript of the proceedings before the primary judge on 28 October 2020.
2.The requirement of r 22.18 of the Family Law Rules 2004 (Cth) be dispensed with in this appeal.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Herriot & Howes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
On 21 December 2020, following a defended hearing on 28 October 2020, a judge of the Federal Circuit Court of Australia made orders dismissing one contravention application and two contempt applications filed by Mr Herriot (“the father”) against Ms Howes (“the mother”).
The father has appealed from those orders, and pursuant to r 22.18 of the Family Law Rules 2004 (Cth) (“the Rules”), and by Order 4 of the Registrar’s procedural orders made on 8 February 2021, the father is responsible for obtaining a transcript of the defended hearing for the purposes of the appeal.
Now by an Application in an Appeal filed on 12 March 2021, the father seeks that he “be excused from any orders to provide an electronic transcript”. A plain reading of that relief would suggest that the father does not wish to rely upon the transcript for the appeal hearing, however, when reference is had to his Summary of Argument filed on 22 April 2021, what the father is in fact seeking is for this Court to bear the costs of obtaining the transcript. Indeed, the father submits that without the relevant transcript, he cannot properly prosecute his appeal against the orders of the primary judge.
The mother opposes the application and seeks that it be dismissed.
For the reasons which follow, the application succeeds insofar as it seeks to dispense with the need for transcript.
BACKGROUND
The father and the mother married in 1999, separated in 2012 and divorced in 2014. There are two children of the marriage, namely X born in 2005 (15 years of age) and Y born in 2007 (13 years of age) (“the children”).
On 12 July 2019, final parenting orders were made by another judge of the Federal Circuit Court, which provided for the children to live with the mother, and spend time with the father as follows:
3.That the child Y spend time with the father at all times as can be agreed and failing agreement as follows:
a. Until 20 January 2020:
i. In a shared care arrangement as agreed:
b. Commencing 20 January 2020:
i.From after school Friday to 4.00pm on Sunday and alternating each weekend thereafter.
…
5.That the child X spend no time with the father, until such time that the following has commenced and where appropriate, been completed:
a.X engage in individual counselling. Both parents to support X and be available to the therapist as required;
b.The father has engaged in individual counselling with the therapist to assist him with building awareness and insight regarding his relationship with X from her perspective, and learn to engage with her in appropriate ways whereby X feels comfortable and supported in order to alleviate her fears;
c.Upon the view of the father’s counsellor that the father is ready to engage in therapeutic counselling with X and for such therapeutic counselling to commence after the father has:
i.Given the mother a report from his individual counselling outlining the he is ready to engage in therapeutic counselling with X; and
ii.The father has completed a Post-Separation Parenting Program Course.
On 7 May 2020, the father filed a contravention application alleging that on both 20 November 2019 and 14 December 2019, the mother without reasonable excuse failed to engage the child X in individual counselling pursuant to paragraph 5 of the 12 July 2019 orders.
On 26 June 2020, the father filed a contempt application alleging that on 15 May 2020 the mother refused to engage the child X in individual counselling in deliberate breach of the orders, and further the mother failed to facilitate the child Y spending time with the father in breach of the orders on both 15 May and 29 May 2020.
On 1 July 2020, the father filed another contempt application which alleged two further contempts of the mother. They both related to the mother’s alleged failure to facilitate the child Y spending time with the father pursuant to the orders on 12 June and 26 June 2020.
The primary judge was not satisfied that either the contravention application or the contempt applications were made out, and dismissed them.
THE FATHER’S APPLICATION FOR THE COURT TO PROVIDE TRANSCRIPT
It should be stated at the outset that the Court is not funded to pay for transcript for appellants, and indeed there is no provision in either the Family Law Act 1975 (Cth) or Rules which expressly permits it. However, there is no doubt that the Court has the power to dispense with the requirements of the Rules, including that which requires the appellant to provide the transcript (r 1.12 of the Rules).
The authorities make plain that the Court has a discretion to provide transcript if the interests of justice require it, but that will usually only be in exceptional circumstances (Forbes & Bream (2008) 222 FLR 96 at [36]; Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 (“Sampson & Harnett”) at [14] and [83]). The Full Court in Sampson & Harnett has provided some guidance as to the factors that a Court may take into account in determining whether or not to exercise such discretion to provide transcript, namely (at [16]):
(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.
The father has not addressed many of the factors listed in Sampson & Hartnett in his affidavit filed in support of his application nor in his Summary of Argument. Doing the best I can, I will consider the application of these factors to the evidence available.
The appeal is against orders dismissing various contravention and contempt applications in relation to final parenting orders.
It appears as though in the event that the appeal is successful, the father wishes the applications be remitted for re-hearing, and if they succeed, seeks to have some variation to the 12 July 2019 parenting orders. In that sense the case is a parenting matter.
Turning then to whether the transcript is necessary for the hearing of the appeal, significantly the grounds of appeal which the father told me he intended to press are as follows:
1.The judge’s decision is ‘plainly wrong’, and a denial of natural justice.
…
3.The judge failed to provide inadequate reasons (and failed to give any reasons at all).
4.The judge failed to properly consider the evidence that was available and failed to take this material consideration into account.
5.The judge was plainly biased.
6.The judge exercised the discretion vested in him by the Family Law Act without taking into account considerations that he was bound to take into account, given weight to irrelevant matters, or failed to give weight or sufficient weight to the relevant consideration.
7.The judge exercised his discretion on a wrong principle or not at all.
(As per the original)
The father appeared to concede before me that a transcript was not necessary to dispose of Grounds 3 and 7; to the extent that he did not make that concession in relation to Ground 3, plainly transcript does not inform the adequacy or otherwise of reasons.
Central to the remaining grounds, at least as expanded upon by the father, is the notion that the mother was a plainly unreliable witness, and her evidence ought not to have been accepted. In that sense it is said that the decision was plainly wrong, that the judge failed to properly consider evidence and take the mother’s dishonesty into account, and by preferring her version of events, or at least accepting her evidence, demonstrated bias. Likewise it is said that by accepting the mother’s dishonest evidence, the primary judge acted by reference to irrelevant matters and the like.
As I attempted to explain to the father during the course of argument, the mere acceptance of a witnesses’ evidence over another is unlikely to ever found a reasonable apprehension that the primary judge did not bring an impartial mind to bear, and hence behaved in a way which could reasonably give rise to an apprehension of bias. Further, as I again explained to the father, it is not to the point whether I may have formed a different view of the mother’s credibility, and hence reached different factual conclusions; the question is whether there was evidence upon which the primary judge’s findings could be sufficiently founded, and particularly whether those findings were glaringly improbable or contrary to incontrovertibly established facts (Fox v Percy (2003) 214 CLR 118).
Therefore it can be seen that even if transcript was available, it is unlikely to in fact bear upon the determination of the appeal, or any part of it.
It was said by the father that the likely costs of the provision of transcript was between $2,525 to $4,185.
Unfortunately the father’s evidence did not allow any gauging of the proportionality of the costs of the transcript to his anticipated costs in relation to the whole appeal.
As I have already discussed, the grounds of appeal are likely to encounter some difficulty. However I cannot presently conclude that the appeal is altogether without merit, particularly because it appears to be advanced in the father’s Summary of Argument (albeit not presently squarely raised in the grounds of appeal) that some allegations of contravention and/or contempt which were raised by the father were not determined by the primary judge. However those matters, assuming that they either presently, or by the time of the hearing of the appeal, are properly raised by grounds of appeal, do not appear to have any relation to transcript.
Whilst in theory the provision of a transcript could be left to the Court hearing the appeal, plainly it would be inconvenient for the parties to prepare for the appeal not knowing whether or not transcript will be amongst the material to which reference should be made.
I cannot identify any other relevant fact or circumstance in this case.
Weighing those matters in the balance, does not persuade me that there are exceptional circumstances such as to militate that the Court itself bear the costs of provision of transcript. I decline to make any such order.
THE FATHER’S APPLICATION FOR DISPENSATION WITH TRANSCRIPT
The father, by orders of a Registrar, has been required to provide transcript. The actual relief sought by his Application in an Appeal filed 12 March 2021 was relevantly that he be excused from that requirement. It was not altogether clear whether, before me, the father continued to press for such an order, in part because that was not touched upon in his Summary of Argument, but also in part because orally he told me that the appeal would fail without transcript. As has been seen, I am not persuaded that the grounds of appeal require transcript, and to that extent I reject that latter submission.
However that then leaves the question of whether or not the requirement for transcript should be dispensed with. As to that, Mr Baston, counsel for the mother did not oppose the father being excused from the requirement to provide transcript.
Taking the father’s evidence as contained in his affidavit of 12 March 2021 unquestioningly, it appears as though he cannot presently afford transcript. It appears therefore that if he remains required to provide transcript, the effect will be that the appeal will be dismissed for non-compliance with the Registrar’s directions. As I have said, at least some of the grounds of appeal, and probably all of them, can be adequately addressed without transcript. In those circumstances it would be unjust to, in effect, require the appeal to be dismissed for non-compliance of the provision of transcript, when the transcript is, at least in relation to some, and perhaps all of the grounds, not essential.
I am therefore satisfied that there should be an order as sought in the father’s Application in an Appeal, to the effect that he be excused from the requirement to provide an electronic transcript, and the appeal proceed in its absence.
COSTS
In the event that the Application in an Appeal succeeded, as it has, the father boldly advanced a claim for $10,000 in costs against the mother. However he conceded he has not in fact expended anything like that sum, and proffered that perhaps his photocopying costs were between $100 and $200. In any event, neither party had complied with Order 5 of the Registrar’s Order made 19 April 2021, which required an itemised schedule of costs on a party/party basis at scale to be filed and served by Tuesday 27 April 2021.
Mr Baston opposed any order for costs, even in the meagre sum of $200, as he correctly submitted that it is difficult to see how the father incurred any photocopying costs in relation to his Application in an Appeal. Rather there has been electronic lodgement of documents, and even those, at scale rates for photocopying, would seem unlikely to have amounted to anything like $200.
I am not persuaded that there should be any order for costs in this case. Particularly, ultimately the relief which has been afforded to the father was not opposed by the mother, and the father was seeking an indulgence of the Court to be relieved from an obligation which he was bound by, arising from the Registrar’s earlier orders.
There will be no order as to costs.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 1 June 2021
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