Oldham & Krantz
[2024] FedCFamC1A 143
•22 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Oldham & Krantz [2024] FedCFamC1A 143
Appeal from: Oldham & Krantz (No 2) [2024] FedCFamC1F 347 Appeal number: NAA 152 of 2024 File number: MLC 8578 of 2019 Judgment of: TREE J Date of judgment: 22 August 2024 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Provision of transcript – Where the appellant seeks that the Court bear the costs of the transcript – Where the husband does not depose as to the cost of the transcript – Where the transcript will only have some baring on two of the appellant’s five grounds – Where it is not in the interests of justice for the Court to purchase the transcript – Where the appellant will be relieved of the obligation to provide the transcript – Application otherwise dismissed. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia 2021 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189
Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220
Number of paragraphs: 26 Date of hearing: 22 August 2024 Place: Cairns The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 152 of 2024
MLC 8578 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR OLDHAM
Appellant
AND: MS KRANTZ
Respondent
ORDER MADE BY:
TREE J
DATE OF ORDER:
22 AUGUST 2024
THE COURT ORDERED ON 22 AUGUST 2024 THAT:
1.The Application in an Appeal filed 15 August 2024 is dismissed.
2.Orders 2 and 3 made by an Appeals Judicial Registrar on 2 August 2024 are discharged.
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 Oldham & Krantz has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
On 23 May 2024, following a three day trial, a judge of the Federal Circuit and Family Court of Australia (Division 1) made final property settlement orders between Mr Oldham (“the husband”) and Ms Krantz (“the wife”). That said, other than retaining a few chattels, the practical effect of the orders was that neither party actually received any funds in their hands, as distinct from them going to their creditors.
From those orders the husband appeals.
On 2 August 2024 an Appeals Judicial Registrar pronounced the following orders:
2.On or before 16 August 2024 (“the due date”) [the husband] email the consolidated digital transcript for filing to the appeal registry and to [the wife] and Independent Children’s Lawyer by way of service.
3.Pursuant to rule 13.22, the appeal will be taken to be abandoned if [the husband] fails to file the digital transcript with the appeal registry by the due date.
4.In the event that [the husband] seeks any order with respect to his obligation to obtain the digital transcript, such order should be sought by filing prior to 4:30pm on the due date an application in an appeal, with supporting affidavit seeking that order. In the event that an application in an appeal is filed pursuant to this order, the due date is extended to the date upon which the said application in an appeal is finalised or as otherwise ordered by the Court.
The consolidated digital transcript was not filed by 16 August 2024, however on 15 August 2024 the husband filed an Application in an Appeal, seeking only an order “that the court provide a transcript of the proceedings to [the husband]” thus enlivening Order 4 and avoiding the consequence of Order 3.
On 22 August 2024 I dismissed the Application in an Appeal, but discharged Orders 2 and 3 of the Appeal Judicial Registrar’s order of 2 August 2024, for reasons to be published later.
These are those reasons.
BACKGROUND
The husband is 61 years of age and the wife 59. Both are self-employed. They commenced their de facto relationship in 2011 and separated in 2019. No children were born to the relationship.
The property settlement proceedings were commenced by the husband in 2019 but, as detailed by the primary judge at [7]–[21], thereafter had a fairly extraordinary history, such that even by the time of the trial before the primary judge, it was nowhere near ready to proceed, although probably never would have been, no matter how much more time was afforded the parties.
The nub of the dispute between the parties was what should occur in relation to the modest residual proceeds of sale of their former home, and an even more modest term deposit. However, the primary judge found that the parties’ liabilities exceeded their assets by $12,425 (at [61]) and hence once existing orders for payment of creditors were complied with, and other liabilities discharged, “…neither of the parties will retain any such funds, rendering the trial… and the outcome thereof, nugatory” (at [66]).
THE APPEAL
The husband’s Notice of Appeal filed 20 July 2024 provides as follows:
1. That the learned Trial Judge erred and His Honour’s discretion miscarried by:
a.Taking into account or placing undue weight on irrelevant and immaterial matters;
b.Failing to take into account or not placing proper weight to numerous material considerations, such as the credibility issues of the Wife, and evidence of the existence of the liabilities of the Husband;
c.Making findings of fact unsupported by evidence.
d.Trial Judge erred in not joining overseas parties, or finding the properties were controlled by the wife. Now one these of these properties have been sold and cash been realized.
e.Trial judge erred in treating the overseas properties as a financial resource.
f.Trial Judge erred in taking into consideration of Registrar Glass orders.
2.That the learned Trial Judge erred by not taking into account material facts such as the Applicant Husband’s age, and the significant period of time that has passed, as a reason for his inconsistency during cross examination.
3.That the learned Trial Judge erred by incorrectly finding that the Orders would not have any effect on the earning capacity of the parties.
4.That the learned Trial Judge erred by not taking into account material facts relating to the Husband’s inability to have the property situate at and known as transferred into his name.
5. That there was a denial of natural justice.
1.Such further grounds of Appeal to be pleaded once the transcript becomes available.
(As per the original)
THE HUSBAND’S APPLICATION IN AN APPEAL
It should be stated at the outset that the Court is not funded to pay for transcript for appellants, and indeed there is no provision in either the Family Law Act 1975 (Cth), the Federal Circuit and Family Court of Australia 2021 (Cth) or the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which expressly permits it.
However, the authorities make plain that the Court nonetheless 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 at [14] and [83]). The Full Court in the latter authority has provided some guidance as to the factors that a Court may take into account in determining whether or not to exercise the 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.
The husband has not addressed many of those factors in his affidavit filed in support of his application, nor in his oral argument. Doing the best I can, I will consider those factors against the available evidence.
The appeal arises from financial proceedings.
A transcript is not necessary to determine Grounds 1(a), (b), (d), (e) and (f), 2, 3 and 4. Thus transcript may only have some bearing on the very broad and entirely unparticularised challenges made by Grounds 1(c) and 5, although I note that the husband’s Notice of Appeal suggests that perhaps other grounds might be raised if a transcript were available.
Thus it can be seen that on the current grounds, transcript is likely to be of slender, if any, assistance in the hearing and determination of the appeal.
I do not know the likely costs of obtaining transcript, but perhaps it might be less than $10,000. The husband claims to be unable to fund it, and I am prepared to act on that basis.
I expect that, being self-represented, the husband will incur few costs in the appeal, and hence the costs of transcript would dwarf those.
Particularly given that the parties’ Summaries of Argument are not yet filed, it is difficult to determine on the present materials whether the appeal has any merit. That said, no ground seems to challenge the fundamental findings of the primary judge that the net pool was negative, and that liabilities should first be paid from the assets available for division, such that there would be nothing left for either party.
It is not appropriate to leave the question of transcript to the Full Court.
I cannot identify any other relevant fact or circumstance.
Weighing those matters in the balance, does not persuade me that there are exceptional circumstances such that the Court itself should bear the costs of provision of transcript. I decline to make any such order, and hence the husband’s Application in an Appeal filed 15 August 2024 will be dismissed.
SHOULD TRANSCRIPT BE DISPENSED WITH?
That then leaves the question of whether or not the requirement for transcript should be dispensed with. As to that, the wife did not oppose the husband being excused from the requirement to provide transcript.
Taking the husband’s evidence as contained in his affidavit of 15 August 2024 unquestioningly, it appears as though he cannot presently afford transcript, and therefore if he remains required to provide it the appeal will be deemed abandoned by operation of the Rules. As I have said, at least some of the grounds of appeal, and perhaps all of them, can be adequately addressed without transcript. In those circumstances it would be unjust to, in effect, require the appeal to be dismissed for the failure to provide transcript, when it is, at least in relation to some, and perhaps all, of the grounds, not necessary.
I was therefore satisfied that there should be an order that the husband be excused from the requirement to provide an electronic transcript, and the appeal proceed without it, and so ordered.
COSTS
In the event that the husband’s Application in an Appeal was dismissed, the wife, who also self-represents, sought no order in relation to costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 23 August 2024