Oakley & Cooper
[2008] FamCAFC 129
•25 August 2008
FAMILY COURT OF AUSTRALIA
| OAKLEY & COOPER | [2008] FamCAFC 129 |
| FAMILY LAW – APPEAL – APPLICATION IN A CASE – Application that the court provide transcript of trial and prepare appeal books – Where the Appellant is self represented and on a disability support pension – Appeal books to be prepared by the Independent Children’s Lawyer (Legal Aid Queensland) FAMILY LAW - COSTS – Reserved to the appeal |
| Family Law Act 1975 (Cth) |
| Andrews v Andrews (Re: Subpoena) (2007) 37 Fam LR 358 |
| APPELLANT: | MR OAKLEY |
| RESPONDENT: | MS COOPER |
| INDEPENDENT CHILDREN’S LAWYER: | LEGAL AID (QLD) |
| FILE NUMBER: | BRM | 5744 | of | 2006 |
| APPEAL NUMBER: | NA | 13 | of | 2008 |
| DATE DELIVERED: | 25 August 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Thackray & Benjamin JJ |
| HEARING DATE: | 4 August 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 21 December 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 1137 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Appellant appeared in person |
| SOLICITOR FOR THE RESPONDENT: | Respondent appeared in person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Buckland |
Orders
That the application filed by the appellant on 19 June 2008 be dismissed.
That the appeal books be prepared by the Independent Children’s Lawyer and filed in the Northern Region Appeal Registry.
That should the appellant not provide the transcript of the hearing before the Federal Magistrate to the Independent Children’s Lawyer on or before 29 September 2008, the appeal books (without transcript) be filed by 13 October 2008 by the Independent Children’s Lawyer and delivered to the parties.
That the costs of and incidental to this application be reserved as costs in the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Oakley & Cooper is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 13 of 2008
File Number: BRM 5744 of 2006
| MR OAKLEY |
Appellant
And
| MS COOPER |
Respondent
REASONS FOR JUDGMENT
The appellant filed an application on 19 June 2008 asking: -
1.That the court provide transcript of trial that was held before Federal Magistrate Baumann on 13 September 2007;
2. That the Appeal Registrar do the books for the appeal.
In support of that application the appellant filed an affidavit explaining:
I don’t have much money, I receive a disability support pension. I pay $150.00pf rent I also pay $33.60pf bus fares to take boys to school and home. I pay $65.00pf loan repayments and $150.00pf for food.
The appellant is self represented and explained that he would have difficulty preparing appeal books and we assume the filing of appeal books.
Ms Buckland appeared for the Independent Children’s Lawyer. We were told by her that Legal Aid (Qld) would prepare the appeal books but would not pay for the transcript. The reason the transcript could not be provided we were told was a matter of policy of Legal Aid (Qld). The only question then for our determination is whether the Family Court of Australia should provide to the appellant the transcript from a hearing by the Federal Magistrate.
There is no difficulty in concluding that the appellant would have some difficulty in finding the moneys for the transcript, which we understand is likely to cost in the vicinity of $1,000.00. Annexed to his affidavit was a recent statement from Centrelink which demonstrates that his Disability Support Pension is $528.00 per fortnight and that he has other small allowances.
In considering whether such an order may be made it is appropriate to understand something of the background to this appeal.
The Federal Magistrate heard the matter the subject of the appeal on 13 September 2007 and delivered the judgment on 21 December 2007. The orders are dated 18 January 2008. The critical issue appears to be the question of equal time with the children, M, born April 2000 and X, born April 2002. The Federal Magistrate found in the circumstances of the case that such an order was not in the best interests of the children, rather an order for substantial and significant time was made.
The appeal was filed on 13 February 2008. The appellant asked that the children live with him. The grounds of appeal appear to complain that the trial judge did not adequately take into account the mother’s violence to the children and the mother’s attitude to complying with court orders.
During his submissions we asked the appellant why it was that he regarded the transcript as important in the hearing of his appeal. He explained that he needed to have the transcript to demonstrate to the court that the mother did not tell the truth during her evidence and he nominated a number of particular occasions including an incident at the Ipswich Police Station, her evidence about her drinking habits and that a previous relationship is ongoing despite court orders. It was ordered (in paragraph 10) that the children not be left alone with this person.
The appellant explained that he was particularly concerned about violence towards the children. We had the impression from what was said that there had been important and perhaps serious incidents involving the children since the decision was delivered in December 2007. If that is the case it may be necessary for the appellant to file an application asking for leave to adduce further evidence and an affidavit setting out the matters about which he spoke.
The mother appeared in relation to this application and apart from denying the various allegations made by the father had no position in relation to the application.
The power of the court to make an order providing transcript to a party
In Andrews v Andrews (Re: Subpoena) (2007) 37 Fam LR 358 the Full Court dismissed an oral application by an appellant for provision of transcript. In that decision the Court expressed the view that:
18.There is no provision in the Family Law Act or in the Family Law Regulations 1984 (Cth) or the Family Law Rules which requires or even empowers the Court to provide transcript to an appellant free of charge for the purpose of inclusion in the appeal books. Indeed, as will be seen, the relevant provisions of the Rules are to the contrary and place the obligation to obtain transcript on the appellant (or in some cases, a cross-appellant):
22.23 Transcript of hearing
The appellant or, if so ordered, the cross-appellant must arrange to obtain the relevant parts of the transcript of the hearing within 28 days after the procedural hearing.
Note A party may apply for an extension of time to comply with rule 22.23 (see rule 1.14).
22.24 Preparation of appeal books
(1)The appellant is responsible for preparing the appeal books.
(2)If a Judge or Regional Appeal Registrar is satisfied that preparing the appeal books would impose exceptional hardship on the appellant, the Judge or Regional Appeal Registrar may order either of the following people to prepare the appeal books:
(a) a Respondent;
(b) the Appeal Registrar.
Note If the Appeal Registrar prepares the appeal books, the appellant or cross-appellant (if so ordered) is still responsible for obtaining the transcript (see rule 22.23).
(3) When making an order under subrule (2), the court may order the appellant to pay the costs of preparing the Appeal Books.
(4)The party responsible for filing the appeal books must, within 56 days after the procedural hearing, file and serve the Appeal Books.
Note 1:The party filing the appeal books must file and serve the number of copies ordered to be filed (see paragraph 22.20 (d)). The number to be filed will include enough copies for each member of the Full Court. In addition, the number required to be served will be 2 copies for each other party.
Note 2:A party may apply for an extension of time (see rule 1.14).
Note 3: If a party fails to comply with the requirements for filing and serving the appeal books, the appeal is taken to be abandoned (see rule 22.56).
19.Referring to the equivalent provisions in the former Rules (being O 32 rr 13 and 15), Joske J held in In the Marriage ofZabaneh (1991) 104 FLR 186 at 188; 14 Fam LR 904 at 905; (1991) FLC 92-239 at 78,630:
It is clear, that the financial assistance that is available to litigants under the Act and Rules is limited to remission of fees in certain specific circumstances. It does not extend to providing transcript at the expense of the court where a litigant is unable to meet this financial responsibility.
20.See also the decisions of the Full Court of this court in M & M & E [2000] FamCA 1688; S & E (FamCA, Lindenmayer, Finn & Gee JJ, 19 December 1994, unreported); S& S (FamCA, Lindenmayer, Kay & Gee JJ, 20 June 1994, unreported).
21.Order 32 rr 13 and 15 were considered by the High Court in an application for special leave to appeal in WJD v TEK (1998) 72 ALJR 1323; [1998] 9 Leg Rep SL4a.. In the course of his reasons for refusing special leave to appeal, McHugh J (with whom Callinan J agreed) observed (at[4]):
4.In the brief proceedings in the Full Court which ultimately led to the dismissal of the appeal, the only question that was discussed was whether the Full Court could order the provision of a transcript free of charge. The court took the view that it had no such power. There is no reason as at presently advised to doubt the correctness of that view.
22.It should however be noted that while agreeing with McHugh J that special leave to appeal should be refused in that case, Kirby J relevantly observed (at [7]-[9]):
7.In a proper case, this Court would, in my view, allow special leave to appeal to consider a refusal on the part of the Family Court of Australia to exercise its suggested discretion to:
(1).Waive strict compliance with its rules relating to the filing of transcript in an appeal;
(2).Order the provision of a transcript by Auscript if that were required in the interests of justice;
(3).Dispense with filing of appeal papers in a formal sense; or
(4).Ensure that officers of the Family Court gave assistance to a party to prepare the appeal papers where it would impose hardship on the appellant to do so. [See Family Court Rules, r 15(2).]
8.Rules of Court are the servants and not the master of the attainment of justice in our courts, as has been often said. [Clune v Watson [1882] Tarl 75; Bay Marine v Clayton Country Property (1986) 8 NSWLR 104 at 108]. It cannot be for the Executive or its agencies by the provision of funds for legal aid, or otherwise, effectively to control access to the appellate process of the courts and, in particular, the courts established under Ch III of the Constitution.
9.However, I agree that this case is not an appropriate vehicle to allow any of the foregoing issues to be considered. The findings of the primary judge were very strong. They appear to render the prospects of success in an appeal very small indeed. The applicant also indicated that he would wish to call new evidence in an appeal and that would rarely be allowed. …
23.It will then be seen that the majority High Court view (at least as then presently advised) was that the Full Court of this court had been correct in concluding that there was no power in the court to order the provision of transcript to a litigant free of charge.
24.However even on the basis that the observations by Kirby J have substance, the present case was not, in our view, one in which the court would order that transcript should be provided to the appellant at the expense of the court. We took this view for the following reasons.
25.First, we were informed by the solicitor for the respondent wife that no oral evidence was given before Waddy J with only oral submissions being made to his Honour; Mr Andrews did not assert to the contrary.
26.Second nothing in the grounds of appeal (which we have earlier set out), nor in Mr Andrew’s pre-argument statement (filed on 13 January 2006), nor in the reasons for judgment of Waddy J, provided any indication that a transcript of the proceedings before his Honour, or indeed before Halligan JR, would be needed to enable the appeal to be determined.
27.For these reasons we were not prepared to depart from the usual rule that this court does not provide transcript free of charge to litigants for the purposes of an appeal (assuming but certainly not deciding that a power exists to so order), and accordingly Mr Andrew’s application for the provision of transcript was dismissed.
In Fortnum & Fortnum (No.2) [2008] FamCAFC 73, unusual circumstances were revealed prior to the hearing of the appeal. These included:
·A two year delay between the trial and the delivery of judgment when the issue of delay was a ground of appeal;
·The reasons for judgment demonstrated that the trial judge had the advantage of the transcript;
·A transcript in electronic form had been prepared;
The Full Court ordered that the Appeal Registrar provide the parties with the transcript. In her judgment Finn J said:
3.We consider that as part of the supervisory role of the Full Court, we need the benefit of the transcript, and indeed the entire transcript, of the proceedings before his Honour in order to properly consider whether justice was done in this case. For these reasons and in the very unusual circumstances of this case, we consider that the Court should provide the entire transcript of the hearing before Cohen J to all parties in this appeal.
4.We make it clear that this decision is made without a determination of whether there is power in the Court to order the preparation of transcript (in the sense of the initial typing or transcription of the content of the recording of the trial) for an appellant, or whether the Court should as a general rule so order. What distinguishes this case is the fact that we became aware late yesterday (against the background of previous applications by the appellant to be provided with the transcript) of the existence of much of the transcript in electronic form. It is only a matter of printing the electronic version of the transcript (at least of most of the trial).
The Full Court’s reasons in the matter of Kettle & Baker & Green, appeal number NA 2,3,19,20 & 69 of 2007, of 6 December 2007 have yet to be published, but having noted that the Court would at its expense in the first instance obtain transcript of the proceedings before the trial judge the Full Court made the following orders:
1.The question of payment for the transcript by the appellant be reserved to the Full Court hearing the appeals.
2.By 31 January 2008 the appellant file and serve an affidavit setting out:
a)his financial position as to assets and liabilities real and personal and income and expenditure
b)his capacity to raise monies for the purpose of purchasing transcript, either by borrowings or the sale of assets.
3. The respondent and the Independent Children’s Lawyer have 14 days after service of the affidavit referred to in Order 2 to file any material in response that they may wish to file.
Conclusions
The authorities to which we have referred indicate there is some controversy concerning the existence of the power of the Court to make an order for the preparation of transcript (at the Court’s own expense) for use in an appeal. In our view, if such power does exist, it would need to be exercised sparingly, especially given that, unlike other jurisdictions, the Family Court does not have a budgetary allocation for provision of transcript to litigants.
Assuming, without deciding, that the Court does have the power to make such an order, we are not persuaded this would be an appropriate case for the exercise of the power. The only reason advanced by the appellant in support of his application was his lack of funds. Whilst we accept that the means of the appellant would be a relevant consideration, in our view limited means alone would not be a sufficient basis for the making of such an order. We therefore intend to dismiss the application.
The orders we intend to make will provide for the appeal books to be prepared by the Independent Children’s Lawyer, as was offered. If the appellant does not provide the transcript, we consider the appeal should nevertheless proceed, albeit the appellant must appreciate that the absence of transcript will have serious implications for the way in which the appeal will be conducted. We note that the directions that have already been made by the Appeal Registrar on 11 July 2008 will be activated upon the filing of the appeal books.
I certify that the preceding Eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 25.08.08
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