Macarthur & Macarthur (No 2)

[2024] FedCFamC1A 8

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Macarthur & Macarthur (No 2) [2024] FedCFamC1A 8

Appeal from:	Macarthur & Macarthur (No 5) [2023] FedCFamC1F 964
Appeal number(s):	NAA 339 of 2023
File number(s):	BRC 6154 of 2020
Judgment of:	ALDRIDGE J
Date of judgment:	7 February 2024
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of transcript – Applicant seeks order that the Court provide the transcript – Appeal from property orders – Applicant says she cannot afford the transcript – Applicant had the funds available at least for some time – Transcript not required for most grounds of appeal – No exceptional circumstances to justify the Court funding the provision of transcript – Application dismissed – Applicant relieved of the obligation to provide the transcript.
Cases cited:	Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220
Number of paragraphs:	15
Date of hearing:	7 February 2024
Place:	Sydney (via video link)
The Applicant:	Self-represented litigant
The Respondent:	Self-represented litigant

ORDERS

NAA 339 of 2023
BRC 6154 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS MACARTHUR

Applicant

AND:

MR MACARTUHUR

Respondent

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	7 FEBRUARY 2024

THE COURT ORDERS THAT:

1.The Application in an Appeal filed 29 January 2024 is dismissed.

2.Orders 7, 8 and 9 of the procedural orders dated 8 January 2024 are vacated.

3.The time in which the applicant must file and serve a Summary of Argument and List of Authorities under Order 11 of the procedural orders dated 8 January 2024 is extended to 4.30 pm on 12 February 2024.

4.The time in which the respondent must file and serve a Summary of Argument and List of Authorities under Order 12 of the procedural orders dated 8 January 2024 is extended to 4.30 pm on 22 February 2024.

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 Macarthur & Macarthur has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

ALDRIDGE J:

1. This is an Application in an Appeal filed by the appellant (“the applicant”) on 29 January 2024 seeking an order that the Court obtain and pay for the transcript of the hearing that led to the orders that are under appeal.

2. On 13 November 2023, a judge of the Federal Circuit and Family Court of Australia (Division 1) made property settlement orders between the parties. Her Honour also dismissed the applicant’s application for spousal maintenance.

3. The primary judge found that there were some $276,628 of assets available for distribution in addition to the parties’ superannuation. Of those funds, all except $141,000 were already held the applicant.

4. In addition to those assets already in her possession, the primary judge found that the funds that were held in trust from the sale of a property in Suburb C, being $141,031, should be divided so that the applicant received a further $129,340 which represented her retaining 96 per cent of the non-superannuation pool (at [144]).

5. In addition to that, the primary judge found that the parties had some superannuation, the respondent’s fund having a value of about $344,000 and the applicant’s about $18,000. Although the applicant is a permanent resident of Australia, she is living permanently in the United States. Her Honour found that there was no evidence before her that there was a complying superannuation fund into which the respondent’s superannuation could be split and accordingly declined to make such an order. It is obvious that that finding led to the division of the non-superannuation property that was made.

6. As to spousal maintenance, her Honour dismissed the application because the applicant had both the skill and experience to get work but gave no evidence of any attempt to find paid employment and failed to call any satisfactory medical evidence that she could not work.

7. A Notice of Appeal was filed on 8 December 2023 appealing against both the property orders and the dismissal of the spousal maintenance application.

8. The orders of an appeal judicial registrar preparing the matter for hearing required the applicant, amongst other things, to obtain, file and serve a copy of the transcript by 29 January 2024 or seek an extension or vacation of that order prior to the expiry of that time. As I have said, the Application in an Appeal was filed on 29 January 2024.

9. In short, the applicant says that she cannot afford the transcript. The Court is not provided with funding to provide transcripts to litigants who have appealed, and accordingly the Court does so only in exceptional circumstances.

10. The matters to be taken into account in such an application were identified by the Full Court in Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542. Relevant to the present case is the fact that this is an appeal about property and maintenance, and not the parenting of children. The Court is more likely to provide the transcript in parenting cases, particularly where there is evidence of a risk to the children.

11. Save for one thing, the evidence of the applicant, at face value, indicates that she cannot afford the transcript. However, she received $129,000 at the end of December 2023. She tells me that she used it to pay off the credit cards, but the fact remains that she had the funds available, at least for some time, to prepare for this appeal.

12. The next consideration is the need for the transcript in relation to the grounds of appeal. Most of the grounds of appeal seem to relate to errors that can be identified from the judgment and the affidavits of the parties. The applicant complains that certain documents were not admitted into evidence. Whilst the transcript might assist in identifying the reasons why such documents were not admitted, that does not prohibit the applicant from producing the document that was sought to be tendered and arguing, on appeal, that it should have been admitted into evidence.

13. I accept that the allegation of bias on the part of the primary judge, which is in part based upon an allegation that the primary judge unfairly required the applicant to answer “yes” or “no” to questions whilst permitting the respondent to provide more expansive replies, would require the transcript to make good. But nonetheless, it appears to me, on balance, that the transcript will not be required for most of the grounds of appeal.

14. Taking those matters into account, I am not satisfied that the Court should take the exceptional step of obtaining the transcript.

15. I am, however, prepared to vacate the order requiring the applicant to obtain the transcript. This is because if she does not do so, her appeal will be deemed to be abandoned and that would not appear to me to be a satisfactory outcome. Consequently, I vacate Orders 7, 8 and 9 made by the appeals judicial registrar on 8 January 2024.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge.

Associate:

Dated:       8 February 2024