Melville and Melville

[2020] FamCAFC 52

FAMILY COURT OF AUSTRALIA

MELVILLE & MELVILLE [2020] FamCAFC 52

FAMILY LAW – APPLICATION IN AN APPEAL – TRANSCRIPT – Where the father seeks an order that he need not provide the entirety of the transcript for his appeal – Where the father was informed he could be permitted to listen to the audio of the hearing to identify the extracts of transcript he would require – Where such order was made with the consent of all parties.

Family Law Act 1975 (Cth)

APPLICANT: Mr Melville

RESPONDENT: Ms Melville

INDEPENDENT CHILDREN’S LAWYER: Dooley Solicitors

FILE NUMBER: BRC 4044 of 2017

APPEAL NUMBER: NOA 98 of 2019

DATE DELIVERED: 10 March 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 10 March 2020

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 10 October 2019 (Property); 10 October 2019 (Parenting)

LOWER COURT MNC: [2019] FCCA 3417 (Property); [2019] FCCA 3323 (Parenting)

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Ms Galvin, Robbins Watson Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Dooley, Dooley Solicitors

Orders

IT IS ORDERED BY CONSENT:

1. The Appeals Registrar facilitate as soon as reasonably practicable the father listening to the audio of the hearing on 9 October 2019, with a view to isolating or extracting from the transcript the necessary part in support of paragraph 7 of his Summary of Argument filed on 11 February 2019, to be filed as soon as possible.

2. Otherwise the requirement for the father to obtain transcript for the hearing on 9 October 2019 be dispensed with.

3. The father’s Application in an Appeal relating to transcript be otherwise dismissed.

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 Melville & Melville 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
BRISBANE

Appeal Number: NOA 98 of 2019
File Number: BRC 4044 of 2017

Mr Melville

Applicant

And

Ms Melville

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. This is the Application in an Appeal of the father in relation to the transcript of the evidence before the trial judge at the trial of these proceedings on 8 and 9 October 2019.

2. The hearing before the trial judge took place over several days; 27 and 28 February, 1 March, and then 8, 9 and 10 October 2019 respectively.

3. Transcript of that hearing is available for the appeal for those dates stated, save and except for 8 and 9 October 2019.

4. On the hearing of this application, the father confirmed that rather than the grounds of appeal set out in his Notice of Appeal which was filed on 31 October 2019, he seeks to agitate on appeal the arguments contained in his Summary of Argument filed on 11 February 2020.

5. It was explained to the father, who represents himself on this hearing, that the need for transcript is driven by the requirement for a Full Court to undertake a review of the proceedings at first instance. It was explained to the father that on occasions such as this, where an appellant provides evidence of impecuniosity and an inability thus to obtain all of the transcript, that a couple of options are available.

6. First, is the option that the requirement for transcript is dispensed with and an appellant is precluded from agitating any ground of appeal or challenge on an appeal where reference to the omitted transcript would be necessary to test that ground or, where respondents would seek to rely upon the transcript to answer the ground.

7. The next option is to obtain part only of the transcript or that part of the transcript necessary to the actual ground of appeal or complaint being agitated on an appeal.

8. Taking up the father’s complaints contained in his Summary of Argument, the father first contended that he did not require any of the transcript for 8 or 9 October 2019 to agitate any of the complaints or grounds of his appeal. However, by reference to paragraph 7 of the Summary of Argument it could be seen that there is specific reference to what is said to have occurred on 9 October 2019, and in particular, statements asserted to have been made by the trial judge on that date.

9. I should say for completeness that the father confirms that his complaint in paragraph 7 about the words used by the trial judge or the trial judge’s description of him as an “emotional abuser” is tied up with the complaint “[s]he was openly bias [sic] showing her dislike toward the father”. That is, that the last sentence of paragraph 7 is not a separate complaint and is one in the same as the complaint about the description the trial judge used of the father.

10. The transcript for 10 October 2019 is available to the Court, so it is only that part of the transcript of 9 October 2019 which is potentially relevant to that ground of appeal.

11. To accommodate the matter, I indicated to the parties a preparedness to make an order that the Appeals Registrar facilitate the father having the opportunity to listen to the audio of the proceedings on 9 October 2019, with a view to isolating or extracting from the transcript the necessary part in support of paragraph 7 of his Summary of Argument.

12. The father confirmed that this would be acceptable and suitable to him and the other parties raised no objection to that course and indicated their consent to an order in these terms.

13. For these reasons I make an order by consent in the terms indicated.

I certify that the preceding thirteen (13) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Kent delivered on 10 March 2020, edited to correct grammatical errors and some infelicity of expression.

Associate: 

Date:  10 March 2020