Oakley & Millar (No. 2)
[2022] FedCFamC1A 27
•25 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Oakley & Millar (No. 2) [2022] FedCFamC1A 27
Appeal from: Millar & Oakley [2021] FedCFamC1F 12 Appeal number(s): NAA 28 of 2021 File number(s): MLC 2195 of 2016 Judgment of: AUSTIN J Date of judgment: 25 February 2022 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of transcript – Where the trial took place over 11 days – Where the Court has procured seven days of the trial transcript at its expense – Where the appellant seeks relief from the provision of the transcript for the remaining four days, and that the Court bear the expense – Where the appellant will not be ordered to provide a transcript he cannot afford, but no aspect of the appeal suggests the Court should grant the appellant any further largesse – Leave to issue subpoena – Medical records – Where the appellant offered no satisfactory reason why he did not procure the records at the time of trial – Where the appellant also sought records created since trial – Where the appellant cannot be permitted to obliterate the distinction between original and appellate jurisdiction – Where none of the medical records would likely be of any probative value – Application dismissed – Practice and procedure – Orders made extending the time for compliance for the parties to file their Summaries of Argument. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.22
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Oakley & Millar [2022] FedCFamC1A 7
Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220
Number of paragraphs: 26 Date of hearing: 25 February 2022 Place: Newcastle (via video link) The Appellant: Litigant in person Solicitor for the Respondent: Ebejer & Associates The Independent Children's Lawyer: Not funded to participate in the appeal ORDERS
NAA 28 of 2021
MLC 2195 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR OAKLEY
Appellant
AND: MS MILLAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
25 FEBRUARY 2022
THE COURT ORDERS THAT:
1.Orders 2 and 3 made on 10 December 2021 are discharged.
2.Order 1 made on 21 January 2021 is discharged.
3.The time for the appellant’s compliance with Order 9 made on 10 December 2021 is extended to Wednesday 6 April 2022.
4.The time for the respondent’s and the Independent Children’s Lawyer’s compliance with Order 10 made on 10 December 2021 is extended to Wednesday 20 April 2022.
5.The Application in an Appeal filed on 7 December 2021 is otherwise 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 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 Oakley & Millar (No. 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
On 1 February 2022, the grounds of appeal contained within the Notice of Appeal filed on 30 September 2021 were struck out for incompetence and, in default of the appellant filing an Amended Notice of Appeal by 22 February 2022, the appeal and a pending interlocutory application were summarily dismissed (Oakley & Millar [2022] FedCFamC1A 7).
The appellant duly filed his Amended Notice of Appeal within time on 22 February 2022 and so his Application in an Appeal filed on 7 December 2021 is now entertained. The appellant seeks orders for:
(a)the Appeal Registrar to prepare the Appeal Book;
(b)the Court to bear the expense of procuring selected excerpts of the trial transcript on his behalf; and
(c)leave to issue subpoenas to various unnamed persons or entities requiring the production of medical records related to the parties’ two children.
Appeal Book
On 26 November 2021, the Appeal Registrar granted the appellant’s request to re-instate his appeal, which had been deemed abandoned.
Shortly afterwards, on 10 December 2021, the Appeal Registrar made procedural directions for the conduct of the appeal hearing. Those directions included the requirement for the appellant to file transcript (Orders 2 and 3; Notations E, F and G), noted the Appeal Book would be prepared by the Appeal Registrar (Notation A), and directed the appellant to file any contested Supplementary Appeal Book upon which he wished to rely (Order 7).
The Appeal Registrar has since prepared the Appeal Book in digital form and it is now freely available to the parties. The appellant’s application for an order requiring the Appeal Registrar to prepare the Appeal Book is now superfluous and is consequently dismissed.
Transcript
The directions made by the Appeal Registrar on 10 December 2021 required the appellant to file the transcript by 21 January 2022 but, on that day, another order was made extending the time for filing of the transcript to 11 February 2022.
The trial before the primary judge was spread across 11 days between July 2020 and July 2021. The Court has already obtained the transcript for the first seven trial days and provided it to the parties (Notation E made on 10 December 2021). Transcript has not yet been obtained for the last four days of trial (28 June, 29 June, 30 June and 1 July 2021).
The appellant seeks relief in two respects: first, that he be relieved from providing the whole of the transcript for those four days; and secondly, that the Court bear the expense of procuring only the parts of the transcript from those four days which comprise the oral evidence of four nominated witnesses.
The basis of the appellant’s application is that his impecuniosity precludes him from affording any of the transcript, but that bare contention alone is not necessarily enough, even if it is true (as it was not proven with any sworn evidence). If it were otherwise, the Court would be swamped by such applications. The Court will only bear the expense of procuring transcript for an appellant when the interests of justice demand it (Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 at [12]–[16]).
This appeal is from parenting orders which make no provision for the children to spend time or to communicate with the appellant. The evidence before the primary judge was, on the whole, apparently strongly supportive of that outcome. In particular, the Independent Children’s Lawyer (“the ICL”) supported the mother’s proposed orders to that effect, with the effective endorsement of the Family Consultant. While the appellant asserts the merit of his appeal to be “very strong”, the amended grounds of appeal do not impart that impression on an objective appraisal. In the main, the appeal seems to be a recitation of the appellant’s case at trial, which was relentlessly critical of the respondent and was rejected by the primary judge on what outwardly appears to be a solid evidentiary foundation.
The Court has already procured seven days of the trial transcript at its expense and no aspect of the appeal suggests the Court should grant the appellant any further largesse. The indulgence he has so far received is quite enough. Although the appellant deposed the remaining four days of transcript will cost him “about 7 thousand dollar” (sic), that is an expense he should bear if he wants to prosecute the 30 amended grounds of appeal as presently pleaded.
The appellant’s amended grounds of appeal make specific complaints about the manner in which the primary judge treated the evidence of the nominated four witnesses (Grounds 5, 8, 9, 11, 13, 18, 26 and 27), but other grounds complain more generally of factual errors and the manner in which the primary judge attributed little weight to the evidence adduced by him (Grounds 1, 6, 8, 9, 10, 11, 12, 13, 15, 16, 19, 20, 21, 23, 25, 27, 28 and 29). The appellant did not volunteer to abandon any of his amended grounds and so the totality of the transcript is needed in order to properly compare and contrast the oral evidence of the witnesses the appellant approbates with that of the witnesses he reprobates in order to ascertain whether or not the primary judge made any factual, discretionary or procedural error.
If the appellant is unable to afford the residual transcript, it is likely he will encounter trouble trying to vindicate those grounds of appeal which depend upon the analysis of oral evidence during the last four days of trial, but that is a problem for the appellant to resolve. He accepted that was so. He may need to consider paring back the grounds of appeal.
The appellant should not be ordered to procure transcript he says he cannot afford since, pursuant to r 13.22(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the failure to file the transcript by the due date results in deemed abandonment of the entire appeal. However, in the ultimate hearing of the appeal, the appellant must accept the consequences which fall from the absence of transcript.
While relief is refused in the terms sought by the appellant, existing orders made in December 2020 and January 2021 requiring him to file the transcript must be discharged.
Subpoenas
The father’s application in relation to fresh subpoenas was as follows:
3. Grant leave to Subponea [sic] the children’s medical records as new evidence.
When asked precisely what records he wanted produced by whom, the appellant said he wanted the children’s medical records from their general practitioner (whom he could not identify) for the period from May 2018 to the present, which period spans both before and after the trial, which concluded in July 2021.
In support of that application, the appellant deposed in his affidavit filed on 7 December 2021:
13.It is necessary to grant leave to subpoena the children records as new evidence which important for the children welfare and wellbeing as during the trial the medical recors [sic] were not subpoenaed and there was no any information available to the court about the children medical needs, although I requested the court to grant leave to subpoena the children's medical records I also requested the Independent children's lawyer to subpoena the medical records but he failed to do so.
14.This case is based on lies, false information and falsified documents and it has been dragged for six years at the court by the other party lawyer using various delay tactics, it is important that the court gets to the facts in this case so the Appeal can be adequately prosecuted.
(As per the original)
The appellant’s assertions that his request for leave from the Court to issue a subpoena requiring production of the children’s medical records was refused, and furthermore, that no subpoena was ever issued requiring the production of the children’s medical records are both incorrect.
He issued a subpoena to Ms Z, a nurse who had been engaged with the family (at [70], [119] and [122]) but, when the subpoena elicited an objection, the appellant elected to withdraw the subpoena. The primary judge made this order on 30 July 2019, a year before the trial started:
3.The father be granted leave to withdraw his subpoena addressed to Ms Z dated 19 July 2019.
Self-evidently, the appellant well knew how to issue and serve subpoenas requiring the production of documents. There is no order on the first-instance Court record showing the refusal of any application made by him for leave to issue a subpoena to any person or entity aside from Ms Z.
The ICL was not present at this hearing to either confirm or refute the appellant’s assertion that he or she disregarded his request to issue a subpoena requiring the production of the children’s medical records. Regardless, the appellant knew the process and was able to do so himself.
The medical records the appellant wants to obtain could only be relevant as further evidence in the appeal under s 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) if they would tend to show appealable error by the primary judge. However, the subject records were largely in existence before the time of trial and the appellant offered no satisfactory reason why he did not procure them by subpoena at that time and tender as exhibits any he thought were relevant and probative during the trial. As for the medical records which may have been created since the trial, the appellant was unable to persuade of any legitimate forensic purpose in their procurement. He had no idea what those records might contain, save that he suspects one of the children might have been treated for a cut finger.
None of the medical records would likely be of any probative value since it was not seriously doubted at trial that the children were physically healthy, despite some vague allegations made by the appellant of the respondent’s physical neglect of them. The appellant could hardly know that anyway because it was uncontroversial he had not seen the children for many years before the trial started.
Ultimately, the appellant simply contended that he thought it would be best if the Full Court had the children’s up to date medical records, but he cannot be permitted to obliterate the distinction between original and appellate jurisdiction (CDJ v VAJ (1998) 197 CLR 172 at [55], [111], [114], [116] and [186.9]). Leave is refused for the appellant to issue the subpoena in the appeal.
Miscellaneous
It will be necessary to extend the time for the parties to file their Summaries of Argument, as those time limits imposed by the procedural orders made in December 2021 have either already expired or will soon do so.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 25 February 2022
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