Marsters & Radcliffe
[2023] FedCFamC1A 231
•22 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Marsters & Radcliffe [2023] FedCFamC1A 231
Appeal from: Radcliffe & Marsters [2023] FedCFamC2F 611 Appeal number: NAA 170 of 2023 File number: LNC 590 of 2021 Judgment of: RIETHMULLER J Date of judgment: 22 December 2023 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks orders for legal aid to provide transcript – No basis for ordering legal aid to provide transcript – Whether the Court should provide transcript – Whether the appellant has assets – Whether transcript is necessary for the appellant’s case – Application for the Court to provide transcript refused – Whether requirement for transcript is dispensed with –Transcript dispensed with – Application to adduce further evidence more appropriately dealt with at the hearing of the appeal – Oppressive number of grounds of appeal – Orders for Amended Notice of Appeal. Legislation: Family Law Act 1975 (Cth) s 75
Family Law (Fees) Regulations 2022 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.31, 13.28, 13.39
Cases cited: Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189
Fortnum & Fortnum (No 2) [2008] FamCAFC 73
Koyroushs & Koyroyshs [2021] FedCFamC1A 54
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44
Sampson & Hartnett (2013) FLC 93-542; [2010] FamCAFC 220
Number of paragraphs: 31 Date of hearing: 15 December 2023 Place: Parramatta Counsel for the Appellant: The Appellant appeared in person Solicitor for the Respondent: Glynn Williams Legal ORDERS
NAA 170 of 2023
LNC 590 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR MARSTERS
Appellant
AND: MS RADCLIFFE
Respondent
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
22 DECEMBER 2023
BY CONSENT, THE COURT ORDERS THAT:
1.The appellant file and serve an Amended Notice of Appeal by 25 January 2024.
FURTHER, THE COURT ORDERS THAT:
2.The requirement of r 13.28(1)(j) that the appellant file and serve a transcript be dispensed with and orders 2 and 3 of the orders made on 4 August 2023 and order 2 of the orders made on 7 November 2023 be discharged.
3.The time for compliance with order 4 of the orders made on 7 November 2023 be extended to provide that the appellant file his Summary of Argument and List of Authorities by 2 February 2024.
4.The time for compliance with order 5 of the orders made on 7 November 2023 be extended to provide that the respondent file any Summary of Argument and list of Authorities by 1 March 2024.
5.That the Application in an Appeal filed on 22 November 2023, to the extent it seeks leave to adduce further evidence on the appeal, be adjourned to the hearing of the 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 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
A Notice of Appeal was filed by the father appealing the orders made on 25 May 2023 following a trial. The orders involved both parenting and property in proceedings filed at first instance by the mother who is the respondent in the appeal.
The appellant filed an Application in an Appeal on 22 November 2023, seeking four orders:
1.That there be an extension of time granted the Applicant regarding compliance with the deadlines provided in the Order dated 07/11/2023 and 04/08/2023 with, say, one week between each document.
2.That the Respondent “Legal Aid of Tasmania” provide the consolidated digital Transcript.
3.That Failing an Order such that Legal Aid provide the transcript, that leave be granted to proceed without the Transcript.
4.That leave be granted the Applicant to introduce evidence not previously before the Court.
The appellant filed three affidavits in support of his Application in the Appeal. The father describes himself as an “unrepresented, unemployed litigant and a vulnerable person suffering from ADHD”, who is “a single parent 50% of the time” and is in “substantial financial hardship”.
In accordance with the Family Law (Fees) Regulations 2022 (Cth), the father was granted an exemption from paying filing fees.
Application for Tasmania Legal Aid to meet the transcript costs
The appellant seeks an order that Tasmania Legal Aid pay for the transcript required for the appeal.
Tasmania Legal Aid are not a party to the proceedings and have not been served with a copy of the application. A more fundamental difficulty for the appellant is that there is no power to order Tasmania Legal Aid to fund a litigant in the circumstances of this case (see Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184). As there is no power to order Tasmania Legal Aid to fund the appellant, there is no useful purpose in requiring the appellant to serve Tasmania Legal Aid.
The application for an order that Tasmania Legal Aid fund the transcript must be refused.
Whether the Court should provide the transcript
Whilst the appellant did not expressly seek orders that the Court fund the transcript, it is appropriate to consider such an order in circumstances where he is unrepresented and sought to pursue such an order when it was raised in argument.
In Forbes & Bream (2008) 222 FLR 96, the Full Court (per Bryant CJ, Boland and Stevenson JJ) noted that the Court had “from time to time judiciously provided transcript to parties where it is demonstrably in the interests of justice to do so” (at [28]) saying that “[i]t has been assumed (without ever being decided) by this court in several cases that such a discretion exists” (at [31]). Their Honours considered that in addition to the “supervisory power of the Court” (see Fortnum & Fortnum (No 2) [2008] FamCAFC 73, per Finn J), the Court may provide the transcript of relevant parts of a matter as an incidence of the exercise of its powers to fulfill the statutory function set out in the appeal provisions (at [35]). However, it was noted that the power was unlikely to be exercised in “anything other than exceptional cases” (at [36]). Significantly, the government funds legal aid agencies to assist with court applications and does not fund the Court to provide transcripts for parties on appeal.
In Sampson & Hartnett (2013) FLC 93-542, the appellant mother asked the Court to provide the transcript of a 14-day hearing as she said that she could not afford to obtain a copy from the transcription service. The Full Court identified a number of factors which may be relevant in support of an application (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.
There is no doubt that the Court has the power to dispense with the requirements of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), including that which requires the appellant to provide the transcript (r 1.31).
The present appeal, whilst against both parenting and property orders, only sets out grounds of appeal relevant to the property settlement orders.
The appellant has not identified which, if any, parts of the transcript are relevant to his claims, nor has he sought to listen to the recordings (in the registry) in order to identify any passages in the evidence that he argues are important. On the hearing of the application, the appellant said that there were “not really” any particular parts of the transcript that were important to his case and that he thought he could show errors without the transcript.
The estimated cost of the transcript (which is for a five-day trial) is between $11,000 and $12,000.
The appellant says that he cannot afford to pay for the transcript, pointing to his low income. However, in the present case the trial judge found that the value of the assets of the parties (after deducting liabilities) were around $425,172.00. The parties also have superannuation of around $238,482.14. The trial judge concluded that the appellant should receive 55 per cent of the assets of the parties.
The appellant has not been granted legal aid, nor applied to any litigation funding services that may allow him to rely upon the equity in the home to fund the transcript costs. However, I note that most litigation lending services (as with legal aid) will decline funding for appeal costs if they form the view that the trial judge’s orders are reasonable, which is not unlikely in this matter. The appellant does not want to use his assets to fund the transcript.
As the appellant is unrepresented, the transcript is the only significant cost that he must incur to pursue the appeal.
The appellant’s prospects on the appeal are difficult to assess as the appellant sets out 73 grounds of appeal which are oppressive to read. The appellant said that he would be filing an Amended Notice of Appeal and requested a time within which to do so. He was content with 25 January 2024, and I will order as such.
For the purpose of this application, it is convenient to summarise the current grounds of appeal by categories:
(1)One complaint, concerning the inadvertent inclusion of Motor Vehicle 1 in the assets to be divided (referred to in the first part of Ground 1, and Grounds 42, 50, and 62), which is conceded by the respondent.
(2)Another complaint, as to a finding of fact where the appellant’s mother is inadvertently referred to as his former wife, appears well founded (Grounds 5 and 7), although it is difficult to see how this particular error of fact could affect the outcome (similarly with Grounds 6 and 9, which appear to be complaints only about expressions used in the judgment that could have been more precise).
(3)Grounds 1 (third and fourth parts), 2, 69 and 71 relate to the valuation evidence, although it appears that the valuations were not in issue and the valuers were not cross-examined.
(4)Complaints about findings of fact that the trial judge made based upon the appellant’s own affidavit evidence (Grounds 4, 8 and 11) and based upon the respondent’s affidavits (Grounds 10, 12, 37 and 40).
(5)Complaints about the trial judge’s conclusions and inferences with respect to the appellant’s income (Grounds 29, 44-46, 49, 52, 54, 55-56, 60, 70) and the impact of Family Tax Benefits (Ground 64).
(6)A very large number of the grounds make bare complaints about findings in various paragraphs of the judgment (Grounds 15–28, 32-36, 38-39, 41, 51, 53, 58-59). There is nothing in the grounds of appeal or the appellant’s affidavit to show any basis for these complaints.
(7)Challenges to the weight given by the trial judge to various contributions and factors under s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) (second part of Ground 1 and Grounds 13, 14, 31, 43, 47-48, 61, 63, 65-68, and 72).
(8)Issues concerning a laptop owned by the parties (Ground 30), although it is difficult to see how a laptop purchased many years ago for $2,500 will have any real impact upon the outcome of the appeal.
(9)Whether the trial judge ought to have taken into account the husband’s legal fees (Ground 57).
(10)Whether there was any error that arose from the trial judge giving judgement by audio visual link when the appellant was unable to appear due to difficulties with his internet connection (Ground 3).
(11)A foreshadowed application to lead further evidence on the appeal (Ground 73).
The appellant has no need for the transcript for the grounds upon which the respondent has conceded.
Grounds going to weight or inferences can largely proceed without a transcript (although there may be some difficulties that the appellant confronts without a transcript).
The grounds relating to findings of fact are largely bare allegations that appear to be no more than a disagreement with the trial judge’s findings of fact. It must also be borne in mind that, as the Court identified in Koyroushs & Koyroyshs [2021] FedCFamC1A 54:
121Where a finding of fact is reasonably open on the evidence in the case, it will not be reversed merely because the appeal court would not have made the same findings (Edwards v Noble (1971) 125 CLR 296). Where the factual findings are likely to have been affected by the judge’s impressions about the credibility or reliability of the witnesses formed from seeing and hearing them give their evidence, unless those findings are demonstrated to be “glaringly improbably” or “contrary to compelling inferences” significant appellate restraint is required (see Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550; Lee v Lee [2019] HCA 28; (2019) 266 CLR 129).
122Here, it was argued that there were inconsistencies in the father’s evidence which ought to have caused the primary judge to reject his evidence. Where there are inconsistencies in a witnesses evidence, it is a quintessential aspect of the judge’s role in fact finding that they may reject part of a witness’ evidence and accept parts if the trier of fact comes to the view that the witness’ account is credible (Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 at 1201; Christmas v Nicol Bros Pty Ltd [1941] NSWStRp 47; (1941) 41 SR (NSW) 317 at 322; Sahrawi & Hadrami [2018] FamCAFC 170; (2018) FLC 93-857 at [59]).
As is apparent from the principles set out above, an appeal is not an opportunity to have the trial re-heard.
The appellant was unable to explain what he expected would be in the transcript that would assist him in showing error on the part of the trial judge.
In argument on this application, the appellant identified that the outcome he was seeking in the appeal is orders that permit him to retain the home and the respondent to retain all of the parties’ superannuation, which he said could be achieved even on a 50/50 split (less than the percentage split the trial judge awarded him). This central argument would not require a transcript.
In the circumstances of this case, I am not persuaded that orders should be made for the Court to fund production of the transcript.
Whether the requirement to file a transcript should be dispensed with
There are many issues in this appeal that can be pursued without a transcript, importantly at least one issue is conceded, and the appellant’s central argument can be made without a transcript. It is therefore appropriate to dispense with r 13.28(1)(j) in this case (and to discharge the directions for filing a transcript). I note, however, that if the appellant proceeds without a transcript, he will be confined to arguments that do not rely upon references to the transcript (to make an argument or where the respondent may require the transcript to answer an argument).
Amended Notice of Appeal
The appellant sought leave to file and serve an Amended Notice of Appeal, rationalising his grounds of appeal. This was not opposed. The parties agreed that this could be done by 25 January 2024, which I will order by consent. Consequential orders are required adjusting the filing times as referred to in paragraph 1 of the Application in the Appeal, which can easily be accommodated prior to the date the appeal is listed for hearing.
Further evidence on the Appeal
The appellant seeks leave to lead further evidence on the appeal. Such an application must be supported by an affidavit setting out the relevant evidence and filed in accordance with r 13.39. It is appropriate to hear any application to adduce further evidence on the appeal on the same day as the appeal, as is the usual process.
I will therefore adjourn the current application for leave to adduce further evidence on the appeal to the hearing of the appeal.
Costs
I reserve the question of costs relating to this application to be dealt with at the conclusion of the appeal.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 22 December 2023
2
10
3