Oram and Lambert & Ors
[2018] FamCAFC 130
•13 July 2018
FAMILY COURT OF AUSTRALIA
| ORAM & LAMBERT AND ORS | [2018] FamCAFC 130 |
| FAMILY LAW – APPLICATION IN AN APPEAL – RESTRAINT OF SOLICITORS FROM ACTING – Preliminary view that the application is not of a procedural nature for the purposes of s 94AAA(10) of the Family Law Act 1975 (Cth) – Where in the absence of a s 94AAA(3) direction the application needs to be heard by a bench of three judges of the Full Court or made in the Federal Circuit Court – Application adjourned. FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the applicant seeks the expedition of her appeal from final parenting orders – Where the application is opposed by the first respondent’s solicitors and therefore cannot be heard until the application for restraint is dealt with – Application adjourned. FAMILY LAW – APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Consideration of factors identified in Sampson & Hartnett (2013) FLC 93-542 at [16] – Where the Court only provides transcript at its own expense to parties in exceptional circumstances – Application dismissed. |
| Family Law Act 1975 (Cth) s 94AAA(10) |
| Finch & Shibo (No 2) [2016] FamCAFC 108 Sampson & Hartnett (2013) FLC 93-542; [2010] FamCAFC 220 |
| APPLICANT: | Ms Oram |
| FIRST RESPONDENT: | Mr Lambert |
| SECOND RESPONDENT: | Ms McCready |
| INDEPENDENT CHILDREN’S LAWYER: | Emalene Gemmell Solicitor |
| FILE NUMBER: | NCC | 2354 | of | 2016 |
| APPEAL NUMBER: | EA | 67 | of | 2018 |
| DATE DELIVERED: | 13 July 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 13 July 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 April 2018 |
| LOWER COURT MNC: | [2018] FCCA 1214 |
REPRESENTATION
| THE APPLICANT: | In person |
COUNSEL FOR THE FIRST RESPONDENT: | Mr Moin solicitor |
| SOLICITOR FOR THE FIRST RESPONDENT: | Moin & Associates |
| THE SECOND RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Gemmell solicitor |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Emalene Gemmell Solicitor |
Orders
The Application in an Appeal filed on 3 July 2018 seeking provision of the transcript is dismissed.
The Applications in an Appeal filed on 3 July 2018 seeking expedition of the appeal and the restraint of the solicitor acting for the First Respondent are stood over to a date and time to be fixed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Oram & Lambert and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 67 of 2018
File Number: NCC 2354 of 2016
| Ms Oram |
Applicant
And
| Mr Lambert |
First Respondent
And
| Ms McCready |
Second Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
Introduction
Ms Oram (“the applicant”) has filed three Applications in an Appeal seeking expedition of her appeal, that the Court provide a copy of the transcript of the hearing for her to use in prosecuting the appeal, and an order restraining the first respondent to the appeal from continuing to instruct his present lawyers.
The first respondent consents to the order for the transcript but opposes the application in relation to expedition and the application for the restraint. The second respondent supports all three applications. The Independent Children’s Lawyer supports the application for the transcript but does not wish to be heard on the other two applications.
Restraint of solicitors from acting
The third application seeking the restraint in relation to the solicitors creates a problem, in that I have the preliminary view that it is not an application of a procedural nature within s 94AAA(10) of the Family Law Act 1975 (Cth) (“the Act”). That subsection permits such applications to be heard by a single judge.
Therefore, it seems that, in the absence of a direction from the Chief Justice under s 94AAA(3) of the Act, the application will either have to be brought in the Federal Circuit Court of Australia or before a bench of three judges. It cannot come before me as a single judge of the Family Court of Australia, as there are no proceedings in this Court, other than for the appeal.
It follows that that matter cannot proceed today. The reason these matters have not been addressed earlier, of course, is that the application was only filed on 3 July 2018.
Expedition
As the application for expedition is opposed by the first respondent, the position of his solicitors will need to be determined before that application can proceed in order to work out who is entitled to appear for him on that application. The expedition application therefore cannot proceed today.
Provision of transcript
The applicant has, however, asked for the transcript application to be heard today because she is trying to prepare the appeal and the application is not opposed by any of the other parties. In those circumstances, I have heard that application.
The proceedings the subject of the appeal were parenting proceedings in relation to the two children, Y aged seven and X aged five. The applicant is their mother. The second respondent is the maternal grandmother of the children. The first respondent was described by the primary judge as the father of X and the “psychological father” of Y. The applicant does not accept those characterisations.
On 18 April 2018 Judge Terry ordered that the two children live with the first respondent who was to have sole parental responsibility for them. The children were to spend two hours per month with the mother which was to take place at a contact centre and to be supervised by it. The first respondent, in his sole discretion, could allow further or unsupervised time.
The children had lived primarily with the applicant until July 2016 when she was incarcerated. The children then lived with the first respondent. This caused the second respondent to commence proceedings seeking orders that the children live with her.
In January 2017 the applicant was released on parole and the children resumed living with her.
In December 2017, following release of the Family Report, interim orders were made for the children to live with the first respondent and to spend weekend and holiday time with the applicant. Following an incident in January 2018, the time the children were to spend with the applicant was reduced to once per week at a contact centre.
The Notice of Appeal was filed on 16 May 2018.
Transcript
The applicant’s evidence is that she is a university student currently living on a Centrelink Youth Allowance. She says that she cannot afford to pay the costs of obtaining the transcript which is estimated to be $8,000. She seeks an order that the Court provide a copy of the transcript to the parties at the Court’s expense.
The Court is not provided with funding to provide transcripts to litigants and does so only in exceptional circumstances: Sampson & Hartnett (2013) FLC 93-542 (“Sampson”) at [80] and [83]; Finch & Shibo (No. 2) [2016] FamCAFC 108 at [8].
The Court in Sampson pointed to a number of matters that may be considered in determining an application for the provision of transcript (at [16]):
·Whether the case is a financial or parenting case;
·Whether the whole transcript or part thereof is necessary for the determination of the appeal or part of the appeal;
·The likely cost of the transcript and whether the appellant can afford all or part of it;
·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 books;
·The prima facie merits of the appeal;
·Whether the cost of providing a transcript can be left to the Full Court hearing the matter; and
·Any other relevant circumstance or matter.
As I have said, the applicant cannot afford to obtain the transcript herself. The cost of doing so will be a significant part of the cost of preparing the appeal, although no information has been given to me as to the likely cost of the preparation of the appeal books.
The applicant describes the relevance of the transcript to the appeal in the following terms:
9.The transcripts are essential to establish evidentiary arguments for many aspects of the appeal.
This includes
i)The demonstration of procedural unfairness throughout the proceedings.
ii)To show that the primary Judges interventions impacted the ultimate findings of the case.
iii)To show that the primary Judges interventions in their number, length, terms and circumstances are important considerations.
iv)To show that the primary Judges interventions occurred at critical points of cross examinations.
v)To demonstrate that the First Respondent failed to make full and frank disclosures throughout his cross-examinations which impacted the ultimate findings.
vi)To demonstrate that the primary judge made findings contrary to evidence provided in documentation and cross-examination.
v)To demonstrate that the primary judge made findings of fact without evidence present to support such findings.
(As per the original)
This would indicate that considerable parts of the transcript, at the least, would be required for the hearing of the appeal. However, the applicant also seeks an order that she be permitted to listen to the audio recording so as to determine which parts she needs. Obviously, she anticipates that she would not need to obtain the whole of the transcript.
I note in passing that the applicant does not need an order in relation to listening to the recording. That can be done by arrangement with the Federal Circuit of Australia and the transcript provider.
The Notice of Appeal contains 30 grounds. It is difficult to assess the merits of them because I have only very limited knowledge of the evidence and submissions that were before the primary judge. It is therefore difficult to assess the merits of the appeal. However, some nine grounds challenge the weight that was given to particular matters. Such challenges face a high bar. There are some grounds that assert a failure to afford procedural fairness to the mother during the trial, but what that procedural unfairness is said to be is not identified in the notice of appeal.
Errors of fact are also asserted but again, in the main, it is not identified why, for example, it is said that the primary judge made findings contrary to the evidence, the primary judge’s decision is ‘plainly wrong’ or there is inadequate reasoning. The grounds of appeal themselves do not indicate a substantial need to rely on the transcript. However, despite the difficulties noted with the grounds, I will work on the assumption that the appeal is reasonably arguable.
The appeal concerns the parenting of relatively young children. I have already briefly set out the issues raised by the applicant. To those, it is necessary to add that the primary judge made the orders appealed from because she was satisfied that the mother’s lifestyle and drug use posed a real risk of harm to the children.
These are serious issues. Sadly, however, these or similar issues arise regularly in appeals in this Court, often in appeals with impecunious appellants. This, and the fact that the Court is not provided with funding to provide transcripts in such cases, justifies the position that such assistance will only be given in exceptional circumstances. I am not satisfied that this is such a case and the Application in an Appeal filed on 3 July 2018 seeking provision of the transcript is dismissed.
The Applications in an Appeal filed on 3 July 2018 seeking expedition and the restraint of the first respondent’s solicitor are stood over to a date and time to be fixed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 13 July 2018.
Legal associate:
Date: 16 July 2018