Oakley and Millar (No. 2)

[2018] FamCAFC 98

FAMILY COURT OF AUSTRALIA

OAKLEY & MILLAR (NO. 2) [2018] FamCAFC 98

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Transcript – Where the appellant seeks orders that the Court provide the transcript of the hearing before the primary judge and the Appeal Registrar prepare the appeal books – Where there are exceptional circumstances here which justify the making of such an order – Court to provide transcript and prepare the appeal books.

Family Law Act 1975 (Cth)

APPELLANT: Mr Oakley

RESPONDENT: Ms Millar

INDEPENDENT CHILDREN’S LAWYER: Taft Lawyers

FILE NUMBER: MLC 2195 of 2016

FIRST APPEAL NUMBER: SOA 11 of 2018

SECOND APPEAL NUMBER: SOA 12 of 2018

DATE DELIVERED: 23 May 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 23 May 2018

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: NA

LOWER COURT MNC: NA

REPRESENTATION

THE APPELLANT: In person

SOLICITOR FOR THE RESPONDENT: Ebejer & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Taft Lawyers

Orders

SOA 11 of 2018

1. Paragraph 1 of the order made on 7 May 2018 be varied to provide that the Appeal Registrar prepare the appeal books.

2. Paragraph 2j of the said order be varied to provide that the transcript of proceedings to be obtained electronically for the purposes of the hearing of the appeal be the transcript of the hearing before the Honourable Cronin J on 30 January 2018 between 2:45pm and 4:30pm.

3. Paragraph 3 of the said order be discharged and in lieu thereof the Appeal Registrar provide a copy of the appeal books and provide by electronic means a copy of the transcript referred to in paragraph (2) herein to each of the parties including the Independent Children’s Lawyer by no later than 8 July 2018.

4. Paragraph 4 of the said order be varied to provide that the appellant file and serve a summary of argument and list of authorities by no later than the close of business on 16 July 2018, and the respondent and the Independent Children’s Lawyer file and serve summaries of argument and lists of authorities by no later than the close of business on 6 August 2018.

SOA 12 of 2018

1. Paragraph 1 of the order made on 7 May 2018 be varied to provide that the Appeal Registrar prepare the appeal books.

2. Paragraph 2g of the said order be discharged.

3. Paragraph 4 of the said order be discharged and in lieu thereof the Appeal Registrar provide a copy of the appeal books to each of the parties including the Independent Children’s Lawyer by no later than 8 July 2018.

4. Paragraph 5 of the said order be varied to provide that the appellant file and serve a summary of argument and a list of authorities by no later than the close of business on 16 July 2018, and the respondent and the Independent Children’s Lawyer file and serve summaries of argument and lists of authorities by no later than the close of business on 6 August 2018.   

IT IS NOTED that publication of this judgment by this Court under the pseudonym Oakley & Millar (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 11 of 2018; SOA 12 of 2018
File Number: MLC 2195 of 2016

MR OAKLEY

Appellant

And

MS MILLAR

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. Before the Court today are two applications in an appeal, both filed on 7 May 2018, by Mr Oakley (“the appellant”), one being filed in appeal number SOA 11 of 2018 and the other being filed in appeal number SOA 12 of 2018.  Those appeals are appeals against, respectively, orders made by Cronin J on 30 January 2018 and 12 February 2018.  Ms Millar (“the respondent”) and the Independent Children’s Lawyer advised the Court that they did not intend to take part in the hearing today.

2. In relation to those appeals, the Appeal Registrar conducted directions hearings on 7 May 2018, and proceeded on the basis that both of those appeals would be heard together and made the same orders in each of those appeals in order to prepare them for hearing.

3. Although there can be no guarantees about this, it is possible that those appeals can be heard in the Full Court sitting commencing in Melbourne on 27 August 2018.  To that end, the orders made by the Appeal Registrar were, in summary, for the filing of appeal books by 15 June 2018, for the appellant to file his summary of argument by 6 July 2018, and for the respondent and the Independent Children’s Lawyer to file their summaries of argument by 27 July 2018.

4. As is common practice, as part of those orders the Appeal Registrar required that the appellant be responsible for the preparation of the appeal books, and for the appeal books to comprise in electronic form the transcripts of the proceedings before the primary judge on the two dates that I have mentioned. 

5. The applications that are before me today seek, in effect, two orders.  First, that the Court obtain the transcript for the purposes of the appeals and, secondly, that the Appeal Registrar prepare the appeal books.  There are affidavits in support of those applications and what the affidavits reveal is that, tragically, members of the appellant’s family have been murdered [overseas] and it is necessary for the appellant to travel [overseas] in relation to that dreadful incident.

6. Previously, there was an injunction restraining both the appellant and the respondent from leaving Australia, and that was an injunction put in place on 10 May 2016.  However, on 9 May 2018, that injunction was discharged, and as a result, obviously, the appellant is able to travel [overseas], and he tells me today that he has arranged that travel from 9 June 2018 until 8 July 2018.  The problem that creates in terms of the appeals is that he clearly will not be able to comply with the orders for the preparation of those appeals. 

7. I am not necessarily satisfied that the appeals are urgent, but it is an appropriate timeframe for appeals filed, as these two appeals were, for them to be heard, if possible, in the week commencing 27 August 2018.  Thus, what I propose to do today is to amend the orders made by the Appeal Registrar on 7 May 2018 to provide later dates for the filing of the summaries of argument. 

8. In relation to the appeal books, and putting aside the issue of the transcript for the moment, I note that there are six documents to be included in the appeal book in appeal number SOA 12 of 2018 and, in appeal number SOA 11 of 2018, there are nine documents to be included in that appeal book.  I understand, in discussions that I have with the Appeal Registrar about this, and she being aware of the documents that are required, that, in the circumstances, the Appeal Registrar is prepared and able to prepare the appeal books for the appellant.

9. However, there is an issue about transcripts.

10. As I explained to the appellant, the Court does not have the funds to be able to provide transcript to litigants.  However, it is of course an access-to-justice issue and, where possible, the Court will attempt to provide transcripts in particular circumstances.  Here, the Court is not able to provide all of the transcripts in relation to the hearings before the primary judge.  However, it transpired that the appellant only seeks a portion of one day’s transcript, and that is 30 January 2018.  Indeed, the portion that he seeks is from 2:45pm until the end of the hearing on that day.  The appellant tells me that his recollection is it was about 4:30pm that the matter concluded on 30 January 2018.

11. In the circumstances that have now transpired, and given that what is now sought is a relatively short transcript, I am prepared to make an order that the Court obtain that portion of the transcript and provide it to the parties. 

12. It has often been said when this Court has had to deal with applications for the provision of transcript, that if there are exceptional circumstances, the Court is sometimes able to provide transcripts and, in this case, I consider that there are such circumstances.  Importantly though, to repeat, the transcript sought is relatively short, and although it will still require the Court to purchase it, I am prepared to order that the Court do that.

I certify that the preceding twelve (12) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 23 May 2018.

Associate: 

Date:  25 May 2018