Herriot & Howes (No. 2)

Case [2021] FamCAFC 84

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 2014

APPEAL 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

  1. 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”).

  2. 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.

  3. Now by an Application in an Appeal filed…

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Details
AGLC
Herriot & Howes (No. 2) [2021] FamCAFC 84
Case
[2021] FamCAFC 84
Decision Date

CaseChat Overview and Summary

Mr Herriot, the father, has applied to the Family Court of Australia for the Court to provide a transcript of the hearing or, alternatively, to dispense with the requirement to provide a transcript. This application arises from the father’s appeal against the dismissal of his contravention and contempt applications filed against the mother. The primary judge found that the contravention and contempt applications were not made out and dismissed them. The father’s appeal against the contravention and contempt applications was heard by the Family Court on 28 October 2020. The father, as the appellant, was required to provide a transcript of the proceedings before the primary judge by 28 February 2021. The father sought an extension of time to provide the transcript and, when that was refused, the father applied to the Court to provide the transcript or, alternatively, to dispense with the requirement to provide the transcript.

The court was required to determine whether the appellant was entitled to the Court providing the transcript or, alternatively, whether the requirement to provide a transcript should be dispensed with. The court noted that the Court is not funded to pay for transcript for appellants and there is no provision in either the Family Law Act 1975 (Cth) or the Rules which expressly permits it. However, 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 court considered whether there were exceptional circumstances to justify the Court providing the transcript. The court noted that the grounds of appeal could be adequately addressed without the transcript and that the appeal was unlikely to succeed. The court concluded that there were no exceptional circumstances to justify an order that the Court provide transcript.

The court granted the father’s application to dispense with the requirement to provide a transcript. The court found that the grounds of appeal could be adequately addressed without the transcript and that the appeal was unlikely to succeed. The court made no order as to costs.

Orders

Orders of the court

NOA 4 of 2021

BRC 32 of 2014

APPEAL 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).

Background

Background to the litigation

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; andii.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).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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