Nicolosi & Faron
[2024] FedCFamC1A 122
•22 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Nicolosi & Faron [2024] FedCFamC1A 122
Appeal from: Faron & Nicolosi [2024] FCWA 60 Appeal number: NAA 109 of 2024 File number: 937 of 2017 Judgment of: AUSTIN J Date of judgment: 22 July 2024 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of transcript – Where the appellant seeks an order that the Court procure the trial transcript (“transcript”) at its expense – Where the appellant has acquired some days of the transcript at his expense – Where there are no exceptional circumstances to justify the Court funding the provision of the remaining days of the transcript – Where the appellant is relieved of the obligation to file and serve the entire transcript – Orders made – Application otherwise dismissed. Legislation: Family Law Act 1975 (Cth) Pts VII, VIII
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.19, 13.22
Cases cited: Peake & Cousins(No 2) [2019] FamCAFC 95 Number of paragraphs: 21 Date of hearing: 22 July 2024 Place: Newcastle (via Microsoft Teams) Counsel for the Appellant: Litigant in person Counsel for the Respondent: Litigant in person ORDERS
NAA 109 of 2024
937 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR NICOLOSI
Appellant
AND: MS FARON
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
22 JULY 2024
THE COURT ORDERS THAT:
1.The appeal is re-instated.
2.The appellant is relieved of the obligation to file and serve the electronic transcript of the trial, other than that which he already possesses for 7 and 8 November 2023, and:
(a)Orders 3, 5 and 6 made on 21 June 2024 are varied by amending the references to electronic transcript to mean only the transcript he already possesses; and
(b)Order 7 made on 21 June 2024 is discharged.
3.The time for the appellant’s compliance with Orders 3 (as amended), 5 (as amended), 8 and 10 made on 21 June 2024 is extended until 4.00 pm on Wednesday 31 July 2024.
4.The Application in an Appeal filed on 18 July 2024 is otherwise dismissed.
5.The time for the respondent’s compliance with Order 11 made on 21 June 2024 is extended until 4.00 pm on Wednesday 21 August 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 Nicolosi & Faron has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
These reasons explain the dismissal of the appellant’s application for the Court to pay for and procure transcript of the trial in readiness for the appeal hearing, fixed for 28 August 2024.
Background
On 5 April 2024, a judge of the Family Court of Western Australia delivered judgment to determine the causes of action between the parties in respect of their children and their property under Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) respectively.
The appellant appealed from all those orders by Notice of Appeal filed on 3 May 2024.
On 21 June 2024, the appeal registrar made procedural orders in the appeal which relevantly required the appellant to file and serve by Friday 19 July 2024 the appeal book, the electronic transcript of the trial, his Summary of Argument and his List of Authorities. The appeal registrar advised the appellant by email on 24 June 2024 that he would need to act with haste and the transcript could be obtained from the provider on about seven days’ notice.
On 1 July 2024, the appellant filed an application seeking an extension until 19 September 2024 within which to file the appeal book, which he later informed the appeal registrar was an application also intended to extend the time within which to file the transcript. The appellant told the appeal registrar he knew the grant of the application would inevitably delay the appeal hearing. The application was heard and dismissed by the appeal registrar on 4 July 2024. The parties were then notified the appeal was set down for hearing before the Full Court on 28 August 2024.
Then, on 18 July 2024 – one day before the time expired to file the appeal documents – the appellant filed another application seeking an order that the Court procure and pay for the trial transcript, relieving him of that burden imposed by r 13.19(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
The application did not include any application for an extension of time within which to file and serve either the appeal book or his Summary of Argument and List of Authorities.
The appellant failed to file the appeal book by 19 July 2024 and so, by operation of r 13.22 of the Rules, the appeal was then deemed abandoned. Nonetheless, the appellant’s application remained listed for hearing on 22 July 2024.
Disposition
The appeal is re-instated as that outcome causes no material prejudice to the respondent after the deemed abandonment of less than three days duration.
The following observations in Peake & Cousins(No 2) [2019] FamCAFC 95 are apposite to the appellant’s application to shift the burden of procuring the transcript to the Court:
17.Despite some past reservations about this Court’s power to order the provision of transcript for a party (WJD & TEK (1998) 72 ALJR 1323; Forbes & Bream (2008) 222 FLR 96 at [30]–[34]), the Court has proceeded on the basis that it will do so in exceptional cases (Forbes & Bream at [35]–[36]). The considerations which will influence whether such an order might be made in the exercise of discretion have been identified and include (see Sampson &Hartnett (Provision of [2010] FamCAFC 220 Transcript) (2013) FLC 93-542 at [16]):
(a) Whether the case is financial or child-related;
(b)Whether the whole or only part of the transcript is integral to the appeal;
(c)Whether the appellant can defray any part of the transcript cost;
(d)The proportional cost of the transcript to the anticipated cost of the appeal;
(e)The prima facie merit of the appeal; and
(f)Whether the Full Court hearing the appeal should make the decision about transcript.
The parenting orders made provision for the children to live with the respondent and to spend time with the appellant. The only ground of appeal which directly concerns the parenting orders (Ground 4) confines the complaint to the orders granting sole parental responsibility to the respondent (Order 2), regulating communication between the children and the appellant (Order 20), regulating the parties’ contact details (Order 24 according to the appellant’s Notice of Appeal, but more likely to concern Order 23), and dictating arrangements for the children’s passports (Order 36). The transcript is not needed to pursue those complaints.
The affidavit filed in support of the application implies the appellant’s real grievance is with the property adjustment orders. He deposed this:
1.On the 5th of April 2024 the family court made orders that I was to pay over $13,000 in spousal maintenance and a 60/40 split of my superannuation.
2.I believe this order was unfair as the judicial officer failed to take into account of the respondents actual income and assets.
…
8.As set out in my trial affidavits and the evidence I provided and believe was ignored or overlooked the respondent made numerous vexatious allegations of domestic violence and abuse.
9.These allegations resulted in me paying for unecassery legal fees I sought to be reimbursed at trial.
10.Due to this situation and that I provided bank statements I provided at trial of my financial situation I believe the financial orders made against me were unfair.
11.These orders have continued to keep me in financial dismay and struggling to support the legal costs of this appeal.
12.Due to these circumstances I respectfully request the court make orders that they pay for the transcripts from the family court trial of November 2023 with closing statement and decision in 2024.
(As per the original)
The appellant adduced no direct evidence about his financial circumstances in support of this application, but the primary judge found the parties’ debts exceeded their modest assets and so the only financial orders made were ones to split the appellant’s superannuation interest. The parties’ combined superannuation interests were valued at around $126,000 (at [118]). Allowing for the 60/40 division in the appellant’s favour, the respondent kept her own superannuation of $23,000 and another $27,500 was split from the appellant’s interest for her. The appellant retained superannuation of about $75,500. It may therefore be accepted that the appellant’s financial circumstances are difficult.
The hearing before the primary judge ran for six days. The appellant said he had already acquired about 1.5 days of transcript, though he had not yet filed it and did not explain his failure. The appellant said he believed the remainder of the transcript would cost $4,500.
There are 11 grounds of appeal, numerous of which do not appear to require advertence to the trial transcript to prosecute. However, several grounds allege bias by the primary judge. The transcript would obviously be useful to the appellant in pursuing such claims of bias, but that of itself does not warrant the Court expending its resources simply to enable the appellant to pursue all the arguments he wishes to advance in the appeal. The ostensible merit of the appeal and the proportionality of the cost of the transcript to the likely remedy bear upon that question.
As pleaded, none of the grounds of appeal should reasonably give the appellant any sense of confidence that the appeal will succeed. They are barely capable of characterisation as grounds of appeal and are more akin to the appellant’s aggrieved perception of the primary judge’s preference for the case run by the respondent rather than his own. Even if the appeal against the superannuation splitting orders succeeds, the best remedial result the appellant could seemingly hope to achieve would be the claw-back of the $27,500 split from his superannuation interest in the respondent’s favour, so the quantum of the best possible remedy does not justify the Court paying to acquire the transcript for him.
The application is dismissed.
However, in order to retain the existing appeal hearing on 28 August 2024, existing procedural orders do now require amendment.
The appellant is relieved of the obligation to file and serve the entire electronic transcript of the trial, though he will be required to file and serve the transcript already in his possession. Giving him an extension of time within which to procure, file and serve the remainder of the transcript would be futile when he asserts he cannot afford it. The appellant will have to prosecute the appeal without the residue of the transcript, even though he may find that situation disadvantageous.
The appellant will be given an extension until Wednesday 31 July 2024 to file and serve the transcript he already has, the appeal book, his Summary of Argument and List of Authorities.
The respondent sought an extension of time within which to file her Summary of Argument and List of Authorities, which are presently due by 16 August 2024. She will be given a few days extra, until Wednesday 21 August 2024, to do so. She made but then abandoned an oral application to vacate the appeal hearing.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 22 July 2024
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