Meadows and Meadows (No. 2) - [2019] FamCAFC 237

FAMILY COURT OF AUSTRALIA

MEADOWS & MEADOWS (NO. 2)

[2019] FamCAFC 237

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of the transcript – Where it is accepted that the mother cannot afford to pay for the transcript – Where the prospects of success are not such that the interests of justice demand the provision of the transcript by the Court – Application dismissed – Mother permitted to provide the parts of the transcript that she considers relevant to the appeal – The mother is aware of the limitations that attend such a course.

Sampson & Hartnett (2013) FLC 93-542; [2010] FamCAFC 220

APPLICANT:

Ms Meadows

RESPONDENT:

Mr Meadows

INDEPENDENT CHILDREN’S LAWYER:

Mr Wilkins

FILE NUMBER:

PAC

3509

2013

APPEAL NUMBER:

2019

DATE DELIVERED:

5 December 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

5 December 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

30 July 2019

LOWER COURT MNC:

[2019] FamCA 491

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Phillip A Wilkins & Associates

Orders

The Application in an Appeal filed on 13 November 2019 be dismissed.
The orders as to the provision of the transcript made by an Appeal Registrar on 30 October 2019 be varied to the extent that the applicant is obliged only to provide the parts of the transcript that she desires.
The date in Order (4) of the orders made by an Appeal Registrar on 30 October 2019 be varied by deleting “11 December 2019” and inserting in its place “8 January 2020”.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meadows & Meadows (No. 2) 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: EA 77 of 2019
File Number: PAC 3509 of 2013

Ms Meadows

Applicant

And

Mr Meadows

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Ms Meadows (“the mother”) has appealed against parenting and property orders made by a judge of the Family Court of Australia in proceedings between her and Mr Meadows (“the father”). An Independent Children’s Lawyer (“ICL”) is also involved.
By an Application in an Appeal filed 13 November 2019, the mother seeks a number of different orders in relation to the provision of the transcript of the hearing before the primary judge because she says that she cannot afford the cost of obtaining it herself.
The parenting proceedings concern the parties’ child who was born in 2011. The primary judge’s orders provide for the child to live with the father and spend limited time with the mother. For the first three months after the date of the orders, that time was to be four hours every second Saturday and ultimately increasing to eight hours every second Saturday.
In short, the primary judge found that there was “a degree of uncertainty about whether the mother can protect the child from psychologist harm” (at [47]) due to the mother’s “impulsive and denigrating behaviour” (at [48]) to the father and his new partner.
The orders, thus, have a significant effect and are no doubt greatly disappointing to the mother, who had sought orders that the child live with her and spend limited time with the father.
As to property, the primary judge found that the parties had net assets of $621,168, which included $201,990 of superannuation. His Honour found that the contributions to the parties’ property and the welfare of the family favoured the mother by 55 per cent to the father’s 45 per cent. The primary judge took into account the father’s superior earning capacity, and seeking against that as the primary carer of the child pursuant to the parenting orders, to make an adjustment of 10 per cent in favour of the father. This led to the father receiving 55 per cent of the net property, including superannuation, and the mother receiving 45 per cent.
One of the orders sought by the mother in her application in relation to the provision of the transcript is that the Court obtain the transcript on her behalf. The immediate difficulty is that the Court is not provided with funding for this purpose. Nonetheless, the Court will consider providing the transcript if the interests of justice require that to be done.
In Sampson & Hartnett (2013) FLC 93-542 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 (2013) FLC 93-542 at 87,171).
The estimated cost of the transcript is between $8,005 and $8,850. I accept that the mother cannot afford to obtain it. The cost of the transcript will be the significant cost of the appeal, as an order has been made that the Appeal Registry will prepare the electronic appeals book.
The grounds of appeal, as they appear in the Amended Notice of Appeal filed 25 September 2019, are difficult to follow. Allowing for that, some appear to assert errors of law which would not require the transcript for their determination, for example, Grounds 1 and 2.
Other grounds of appeal assert that there are contrary findings within the primary judge’s reasons for judgment. Again, it is difficult to see how the transcript would be required for their determination, for example, Ground 5.
Nonetheless, some grounds of appeal would appear to raise issues which could only be resolved by the Court and the parties having access to all of the transcript and the evidence. For example, Grounds 3 and 6 state:
3.His Honour has made findings at Paragraphs 29 to 43, 66, 71, 73 to 76, 91 & 92 implementing Orders: 1, 2, 3, 4, 5, 6, 7, 8, 9, 13, 18 that are inconsistent to the submissions, exhibit and witness evidence and parties admittances and expert affidavit evidences of the substantial care, education, financial and parenting commitments made by and to the child by the Mother and has not applied enough weight to those evidences in his determinations of the abovementioned orders for the live with and spend time with arrangements and schooling of the child.
6.His Honour … has erred in his reasonings for the implementation of Orders 1, 2, 3, 4, 5, 6, 7, 8, 9, 13 and 18 in respects of Paragraphs 25, 26, 27, 30, 35 & 50 making findings inconsistent with verbal admittances made by the Family Consultant … and in his significant application of weight to the views of [the Family Consultant] in circumstances of which further reports and exhibit evidences had revealed significant and credible non-disclosure of relevant mental health, medication use and violence factors not available to the Family Consultant for the formulation of her report.
(Amended Notice of Appeal filed 25 September 2019) (As per the original)
As can be seen from Ground 3, the errors as asserted, cover 23 paragraphs of the reasons for judgment, many of which contain many findings. The reasons for judgment at [29], to take just one example, comprise of five subparagraphs that extend to nearly two and a half pages. It cannot possibly be suggested that each and every finding is wrong, because some are findings that the mother asked the primary judge to make, such as the father having a conviction of a drink driving offence in 2007 (at [29(a)]). Others, such as “the parties have not been an “intact” couple for nearly five years” (at [29(a)]) would also appear to be obviously correct.
Some of the findings identified by the mother in Ground 3, would appear to be findings in the mother’s favour, such as “there are no current issues about [the mother’s] functioning which should concern the Court” (at [33]). When this was raised with the mother, she said that not every finding in these paragraphs was in error, and that the main problem was the late production of material, by way of subpoena, that had not been read or considered by the Family Consultant who provided a report to the Court. The mother says that this issue was raised by, at least, Grounds 6 to 9 of the Amended Notice of Appeal filed 25 September 2019.
Obviously, in relation to those grounds, at least, the transcript of the evidence of the Family Consultant would be required and possibly the whole of it. However, the inference that can be drawn from the submissions in relation to the appeal, as can best be done at this early stage is, in effect, to re-run the trial and ask the Full Court to make findings different to those made by the primary judge. That is not how an appeal works. The task of an appellant is to identify error that has led to a miscarriage of justice.
I accept that it is difficult to glean the prospect of success of an appeal at such an early stage with only limited materials available, but on that material, I am not satisfied that the prospects of success of the appeal are such that the interests of justice demand the provision of transcript by the Court. If, however, the Full Court that hears this appeal, and which would have a greater knowledge of the matter, comes to a different view, the Full Court can then make orders for its provision.
I am not satisfied that the Court should provide the transcript.
The next order sought by the mother is that she could prepare the transcript for the third day of the hearing from the audio recording which she has already obtained.
There are a number of difficulties with this. First, the Court’s practice and distinct preference is to use an electronic transcript. Secondly, it must be accurately prepared in an acceptable format. That is a significant burden to place on anyone and there is no suggestion that the mother has any particular expertise in this area. The mother says that she is experienced in medical transcriptions but that is somewhat different, whilst it of course, also has demands as to accuracy.
Finally, if this course were followed it would require the father and the ICL to go to the considerable expense of checking the completeness and accuracy of the document prepared by the mother. That could only be done by comparing it against the audio tape. I do not consider that to be an appropriate order to make.
The mother seeks an order that the father pay one half of the costs of the transcript. Presumably, the mother would bear the other half, but her evidence is that at present, she cannot afford to do so. More importantly, I doubt if there is power to make such an order. In any event, if there was, I do not see why such an order would be just.
Finally, the mother proposes that she be permitted to provide such transcript as she considers relevant to the appeal and that she can afford to do so. The difficulty that arises is one that directly affects the mother. If she follows that course, her submissions will be limited to the transcript that is available. If, however, the issue is whether or not some particular evidence was given or an event occurred, if the whole of the transcript is not available, or the whole of that relevant person’s evidence is not available or the matters concerning the event are not available, the mother’s submission may well fail for that reason alone. This will be because the error contended for cannot be clearly demonstrated.
However, given the serious nature of the primary judge’s parenting orders, I would be prepared to permit the mother to follow that course if she wishes to do so. The mother tells me that she understands the limitations that attend that course and is prepared to proceed on that basis.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Aldridge delivered on 5 December 2019.

Associate:

Date: 12 December 2019