JARDINE & SACKVILLE - [2020] FamCAFC 258

FAMILY COURT OF AUSTRALIA

JARDINE & SACKVILLE

[2020] FamCAFC 258

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Appeal from final parenting orders – The Court is not funded to obtain transcript for parties – Where the interests of justice do not require the Court to provide the transcript in this case – Poor prospects of success on appeal – Where the time to file the transcript is extended – Application in an Appeal dismissed – No order as to costs.

Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Finch & Shibo(No. 2) [2016] FamCAFC 108
Sampson & Hartnett (2013) FLC 93-542; [2010] FamCAFC 220

APPLICANT:

Mr Jardine

RESPONDENT:

Ms Sackville

INDEPENDENT CHILDREN’S LAWYER:

Krstina Wooi Lawyer

FILE NUMBER:

NCC

1949

2018

APPEAL NUMBER:

EAA

2020

DATE DELIVERED:

16 October 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney (via video link)

JUDGMENT OF:

Aldridge J

HEARING DATE:

13 October 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

20 May 2020

LOWER COURT MNC:

[2020] FamCA 346

REPRESENTATION

THE APPLICANT:

Self-represented litigant

SOLICITOR FOR THE RESPONDENT:

McIntosh McPhillamy & Co Legal Services

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Krstina Wooi Lawyer

Orders

The time by which the applicant is to file and serve the consolidated digital transcript be extended up to and including 6 November 2020.
The Application in an Appeal filed on 11 September 2020 be dismissed.
There be no order as to costs.

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 Jardine & Sackville 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 81 of 2020
File Number: NCC 1949 of 2018

Mr Jardine

Applicant

And

Ms Sackville

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Mr Jardine (“the father”) has appealed against final parenting orders made by a judge of the Family Court of Australia on 20 May 2020, which provide for Ms Sackville (“the mother”) to have sole parental responsibility for the parties’ two children, X, born in 2011 and Y, born in 2013 (“the children”). The orders also provide for the children to live with the mother and make no provision for the father to spend time with the children or communicate with them.
By an Application in an Appeal filed on 11 September 2020, the father seeks an order in relation to the provision of the transcript of the hearing before the primary judge on 28, 29 and 30 April 2020. In his Application in an Appeal, the father seeks an order that he be exempt from paying for the transcript and in his supporting affidavit filed on 11 September 2020, he suggests that the Court should obtain the transcript for him at its expense. It became apparent from the father’s oral submissions at the hearing of the application that the father’s aim in bringing the application was to have the transcript obtained for him.
The father is self-represented and contends that he is an “[i]mpecunious [l]itigant” (father’s affidavit filed on 11 September 2020, paragraph 1) as he does not have sufficient funds to secure the costs of obtaining the transcript himself.
The father also contends that litigants in Queensland may apply to the Attorney-General of Queensland for an exemption from paying the costs associated with obtaining transcripts on the basis of financial hardship. The father states that it “would seem unfair if the rest of Australia were not given the same opportunities which would amount to discrimination” (father’s affidavit filed on 11 September 2020, paragraph 2).
However, this Court is not provided with funding to provide transcripts to litigants and does not do so, save in exceptional circumstances (Sampson & Hartnett (2013) FLC 93-542 (“Sampson & Hartnett”) at [83] and Finch & Shibo(No. 2) [2016] FamCAFC 108 at [8]). The fact that such assistance may be available in Queensland is not relevant.
The Court will consider providing the transcript if the interests of justice require that to be done. In Sampson & Hartnett at 87,170, the Full Court 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.
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 & Hartnett at 87,171).
Essentially, the primary judge found that there had been a long history of family violence, which was evident from uncontroversial sources, and that an effect of this was that the children were scared of the father.
Whilst the orders made by the primary judge have a most significant effect in that they effectively remove the father from the children’s lives, they are clearly based on the above findings.
The cost of the complete transcript for the three days of hearing before the primary judge is unknown, however, the father receives Centrelink benefits and I am satisfied that he does not have the means to pay for it.
The father’s grounds of appeal are in the most general terms. He relies on seven grounds of appeal which contend that he was denied procedural fairness and natural justice, including unwarranted judicial interventions (Grounds 2, 6 and 7), there was an apprehension of bias (Ground 1), and the primary judge made errors of law and fact (Grounds 3 and 5) and failed to take into account a number of relevant considerations (Ground 4).
In the course of oral submissions at the hearing of the application, I asked the father to identify the bias alleged, procedural errors, erroneous findings of fact and unwarranted judicial interventions in order to gain an impression of the strength of the appeal and to identify how important a transcript would be to the resolution of the appeal.
The father was unable to do so.
In relation to Ground 1, being an apprehension of bias, the father referred only to the conduct of the Independent Children’s Lawyer (who he described as corrupt and conducting a personal vendetta against him) and the writer of the Family Report (who he also described as corrupt). No conduct of the primary judge was identified.
When asked about the asserted procedural errors (Grounds 2, 6 and 7), the father said that he was self-represented, this was over the top for him, and he could not tell me what they were and would have to get back to me.
The father then sought an adjournment so as to be able to answer these questions. I declined to accede to that request.
The father must have had certain matters in mind that constituted apprehended bias and procedural errors when drafting his Notice of Appeal. Although the father is acting for himself, he should have been able to provide some indication of what he had in mind when he drafted the grounds of appeal. The matters that the father was able to identify related to the conduct of people other than the primary judge and therefore do not identify appealable error.
It is difficult to assess the prospects of the appeal at such an early stage when regard can only be had to the Notice of Appeal and the primary judge’s reasons for judgment. However, having regard to the entirely unparticularised grounds of appeal and the father’s inability to give any indication of the errors that he seeks to identify, the prospects of success on appeal can only be described as poor.
Having also looked at the primary judge’s reasons for judgment, there is no occasion for suspecting, on reasonable grounds, that there is an appealable error that would require the Full Court to hunt through all of the material for itself (Bahonko v Sterjov (2008) 166 FCR 415 at [3]).
I accept that the absence of a transcript will make it difficult for the father to prosecute his appeal because, without it, it is unlikely that he could lay the foundation for a claim of apprehended bias or procedural unfairness and he may have difficulty in identifying the alleged errors of fact.
However, it must be said that more is required than just an arguable appeal in a parenting matter, even when the orders are of the kind that were made in this matter, to persuade the Court to provide the transcript at its own expense.
Taking these matters into account, I am not satisfied that this is a case where the interests of justice require the provision of the transcript by the Court.
As I have said, the prosecution of the father’s appeal will be made very difficult by the absence of the transcript because if an alleged error can only be established by reference to the transcript, its absence inevitably means that the appeal will fail on that point. The transcript will also be essential to the challenges as to asserted errors of fact.
Having regard to the grounds of appeal advanced by the father, it is clear that the appeal cannot be argued successfully without the transcript. There is no point exempting the father from providing it because to do so would waste the parties’ and the Independent Children’s Lawyer’s money and everyone’s, including the Court’s, time and attention on an appeal that would be untenable and pointless.
The father’s Application in an Appeal will therefore be dismissed. However, I will extend the time for providing the transcript (which was 7 October 2020) so that if the father can manage to obtain it, he may prosecute the appeal. If not, it will be deemed to be abandoned when the transcript is not filed.
No orders for the payment of costs were sought by the respondent or the Independent Children’s Lawyer in the event that the application was not successful. There will be no order as to costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 16 October 2020.

Associate:

Date: 16 October 2020