Newett & Newett (No. 2)
[2021] FamCAFC 98
•24 June 2021
FAMILY COURT OF AUSTRALIA
Newett & Newett (No. 2) [2021] FamCAFC 98
Appeal from: Newett & Newett [2021] FamCA 82 Appeal number(s): NOA 11 of 2021 File number(s): BRC 2179 of 2018 Judgment of: TREE J Date of judgment: 24 June 2021 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Where the appellant mother seeks for this Court to purchase transcript for the purpose of her appeal – Where the transcript is not necessary for the determination of the appeal – No exceptional circumstance to justify the Court funding the provision of transcript – Where the requirement for the mother to obtain transcript be dispensed with – No order as to costs. Legislation: Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) rr 1.12, 22.18
Cases cited: Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189
Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220
Division: Appeal Division Number of paragraphs: 21 Date of hearing: 22 June 2021 Place: Cairns The Appellant: Self-represented Solicitor for the First Respondent: Damien Greer Lawyers The Second Respondent: Self-represented (no appearance) Solicitor for the Independent Children’s Lawyer: Norman & Kingston Solicitors ORDERS
NOA 11 of 2021
BRC 2179 of 2018APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS NEWETT
Appellant
AND: MR NEWETT
First Respondent
MS ADLAM
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
TREE J
DATE OF ORDER:
24 JUNE 2021
THE COURT ORDERS THAT:
1.Insofar as the orders of a Registrar made 17 May 2021 require the appellant mother to obtain and file transcript of the proceedings before the primary judge on 11 and 25 February 2021, they be discharged.
2.The requirement of r 22.18 of the Family Law Rules 2004 (Cth) be dispensed with in this appeal.
3.Otherwise the appellant mother’s Application in an Appeal filed 16 June 2021 be dismissed.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Newett & Newett (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
On 25 February 2021, a judge of the Family Court of Australia dismissed an application by Ms Newett (“the mother”) that he recuse himself from further dealing with extant parenting and property proceedings between the mother, Mr Newett (“the father”), Ms Adlam (“the maternal grandmother”) and an Independent Children's Lawyer. By Notice of Appeal filed 12 March 2021 the mother has appealed from that order.
In the course of preparing that appeal for hearing, on 17 May 2021 a Registrar made orders that the mother, amongst other things, “obtain an electronic transcript from the Court’s authorised provider in accordance with the attached settled appeal index”. That index specified that the transcript required to be produced was of the hearing on 11 February 2021 (when the mother’s application that the primary judge recuse himself was argued), and on 25 February 2021 (when the reserved decision was delivered).
By Order 6 of the Registrar’s orders, the transcript was required to be emailed to the Court by 4.00 pm on Friday 18 June 2021, and by Order 7, in the event that was not done, the appeal would be taken to be abandoned.
Now by Application in an Appeal filed 16 June 2021, the mother primarily seeks an extension of time for the provision of the transcript, that she be excused from being required to provide the transcript, but rather that the Court purchase “the fully unredacted transcripts”. She also seeks a number of other orders which I will discuss in due course.
On 22 June 2021 I heard the mother’s application and reserved my decision. This is that decision and the reasons for it.
BACKGROUND
The parties have been engaged for some years in torrid and acrimonious litigation in relation to their children and property. It is unnecessary to traverse the detail of that, but suffice to say that after the matter was transferred from the Federal Circuit Court of Australia to the Family Court of Australia, the primary judge, who became seized of the matter, has attempted to ready it for trial, and hear that trial. In the course of doing so, the primary judge had, prior to the 25 February decision, already published six sets of written reasons for judgment, in addition to providing oral reasons which were not subsequently published, on another two occasions.
The mother’s application that the primary judge recuse himself from further involvement in the litigation was, according to the primary judge’s reasons, based upon a wide raft of the primary judge’s previous dealings with the matter, as set out at [11]–[15] of his Honour’s reasons. Further matters advanced by the maternal grandmother and the mother are recited at [16]. It is unnecessary to repeat them in these reasons.
SHOULD THE COURT OBTAIN THE TRANSCRIPT
This Court is not funded to pay for transcript for appellants, and indeed there is no provision in either the Family Law Act 1975 (Cth) or the Family Law Rules 2004 (Cth) (“the Rules”) which expressly permits it. However the authorities establish that the Court has a discretion to provide transcript if the interests of justice require it, but that will usually only be in exceptional circumstances (Forbes & Bream (2008) 222 FLR 96 at [36]; Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 (“Sampson & Harnett”) at [14] and [83]). The Full Court in Sampson & Hartnett has provided some guidance as to the factors that a Court may take into account in determining whether or not to exercise such discretion to provide transcript, namely (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.
Save for evidence as to the cost of obtaining a transcript for 11 February 2021 (said to be $2,428) and evidence as to her impecuniosity, neither the mother’s material nor argument addressed the factors listed in Sampson & Hartnett. However on this occasion it is unnecessary for me to traverse all of those matters, as the determinative issue is whether any part of the transcript of 11 February or 25 February 2021 is necessary for the appeal.
It will be remembered that those dates were the dates on which the mother’s application for recusal were argued before the primary judge, and the date on which the subsequent decision was delivered.
The mother’s Notice of Appeal filed 12 March 2021 contains only three grounds as follows:
1.His Honour failed to exercise jurisdiction and made error of his jurisdiction in his assessment of the presence of his own actual and/or apprehended bias; impacting the legitimate expectation of complete independence and impartiality of Judicial Officers in a Chapter III Court.
2.His Honour failed to apply the law in relation to Case Authorities Johnson v Johnson and Ebner, and other like cases, where a fair-minded lay observer would reasonably determine the presence of bias.
3.His Honour failed to apply the law in relation to Case Authorities Minister for Immigration v Jia, where the test for Actual Bias was met by the conditions surrounding:
a. the Case Management process and Orders made throughout 2020,
b. His Honour’s conduct during Case Management proceedings and at Trial,
c. His Honour’s criminal act in not applying Schedule 1 s273B Criminal Code Act 1995 (Cth) and
d. His Honour’s conduct in making oppressive and unlawful Orders on 9 December 2020.
(As per the original)
None of those grounds raise any complaint in relation to the events that occurred on 11 February 2021. I am at a loss to see how the transcript of argument relating to the mother’s application for recusal could possibly shed any light, or have any bearing, upon an appeal from the orders of 25 February 2021. That is because, as I have already said, the numerous complaints, which in aggregate the mother contended should have led to the primary judge disqualifying himself from further dealing with the matter, all without exception, pre-dated 11 February 2021. Therefore the appeal can conveniently be disposed of without the transcript of either date, which is unnecessary. Given that the transcript is not necessary for the determination of the appeal, there could be no exceptional circumstance such as to justify the Court funding the provision of transcript. In any event, the mother’s impecuniosity and consequent inability to afford transcript would not, of itself, establish exceptional circumstances.
SHOULD THE PROVISION OF TRANSCRIPT BY THE MOTHER BE DISPENSED WITH
There is no doubt that the Court has the power to dispense with the requirements of the Rules, including that which requires the appellant to provide the transcript (r 1.12 of the Rules).
I have already indicated that the transcript of the hearing of 11 February 2021 is not necessary for the determination of the appeal. Even stronger is the conclusion that transcript of 25 February 2021 – when the decision was formally published – is unnecessary too.
As I have detailed earlier, the orders of the Registrar of 17 May 2021 required the mother to provide transcript of both days, and in the event that she did not do so within the time provided for, the appeal would be taken to be abandoned.
It seems plain that the mother is presently unable to fund the provision of transcript, as she says that, at least as at the time of filing her affidavit, she only had $60.00 standing to her name. The effect of a combination of that impecuniosity and the Registrar’s orders of 17 May 2021, is that the appeal will inevitably not proceed.
Now is not the time to consider the prospects of success of the mother’s appeal, as there is no balancing of competing considerations required where the transcript is completely unnecessary. If there were even marginal relevance of the transcript, such a balancing may be required, and a consideration of the merits of the appeal undertaken, however this is not such a case. In any event, it seems rather unlikely that I could be presently satisfied that the appeal is wholly unarguable, or otherwise devoid of merit.
It therefore follows that, if she continues to be obliged to provide unnecessary transcript, the mother would be deprived of the opportunity to litigate her appeal. However when I explained that to the mother during the hearing, she appeared to disavow any desire to be relieved from the obligation to provide transcript at her cost. That was all the more curious given that neither the father nor the Independent Children's Lawyer suggested any prejudice would arise to them if the transcript was not available. Therefore, in the circumstances, the appropriate course is to excuse the mother from obtaining an electronic transcript of 11 and 25 February 2021, and discharge the orders of the Registrar made 17 May 2021 to the extent that they require her to do so. There should also be a dispensation from compliance with r 22.18 of the Rules. Of course such orders would not preclude the mother, if she can afford to do so, from nonetheless seeking to file the transcript prior to the hearing of the appeal.
OTHER MATTERS
In her Application in an Appeal filed 16 June 2021, the mother made application for a number of other, rather flamboyant, orders, including that that application be heard ex parte and determined in chambers. Of course, an application such as that filed 16 June 2021 is not appropriately heard ex parte, or determined in chambers without the opportunity for the other parties to have input.
More significantly, by paragraph 7 of her application, the mother sought an order that she “be excused from purchasing the transcript(s) of any future matter hearings and/or [a]ppeals and that the Court purchase any transcripts required for future proceedings”. Even assuming that I have power to make such a prospective order in respect of presently non-existent appeals, it would be entirely inappropriate to so order, as the matters that would be required to be considered as set out in Sampson & Hartnett are unknown. It therefore follows that, save for excusing the mother from the provision of transcript, her Application in an Appeal should otherwise be dismissed.
COSTS
In the event that her application was successful, the mother sought an order that the parties bear their own costs. For their part, in the event that the application substantially succeeded, the father and Independent Children's Lawyer conceded that each party should bear their own costs. There will therefore be no order as to costs.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 24 June 2021
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