Pallin & Deave

Case [2024] FedCFamC1A 155

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Pallin & Deave [2024] FedCFamC1A 155

Appeal from: Deave & Pallin (No 3) [2024] FedCFamC2F 691
Appeal number(s): NAA 163 of 2024
File number(s): HBC 1339 of 2021
Judgment of: RIETHMULLER J
Date of judgment: 9 September 2024
Catchwords: APPEAL – APPLICATION IN AN APPEAL – Provision of Transcript – Where the appellant seeks that the court provides the transcript – Whether transcript is necessary for appellant’s case – Application for the Court to provide transcript refused – Applicant relieved of obligation to provide the transcript – Application otherwise dismissed.
Legislation:

Crimes Act 1914 (Cth)

Family Law Act 1975 (Cth) s 102NA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.22

Cases cited:

Bruce & Bruce [2023] FedCFamC1A 225

Marsters & Radcliffe [2023] FedCFamC1A 231

Oakley & Millar (No. 2) [2022] FedCFamC1A 27

Oldham & Krantz [2024] FedCFamC1A 143

Number of paragraphs: 24
Date of last submission/s: 28 August 2024
Date of hearing: 14 & 21 August 2024
Place: Parramatta
Counsel for the Appellant: Litigant in person
Counsel for the Respondent: Litigant in person
Counsel for the Independent Children's Lawyer: Submitting notice filed 1 August 2024

ORDERS

NAA 163 of 2024
HBC 1339 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR PALLIN

Appellant
AND:

MS DEAVE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

9 SEPTMEBER 2024

THE COURT ORDERS THAT:

1.The time for the appellant’s compliance with Order 2 made by the appeal registrar on 12 August 2024 is extended to 20 September 2024.

2.Order 3 made by the appeal registrar on 12 August 2024 is discharged.

3.In the event of the appellant’s default in compliance with Order 1 hereof, the operation of r 13.22(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) is suspended, such that the appeal is not deemed abandoned and proceeds to hearing without a transcript.

4.The Application in an Appeal filed by the appellant on 6 August 2024 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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym, Pallin & Deave, has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

RIETHMULLER J:

  1. The appellant has…

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Pallin & Deave [2024] FedCFamC1A 155
Case
[2024] FedCFamC1A 155
Decision Date

CaseChat Overview and Summary

The case before the Federal Circuit and Family Court of Australia involves an appeal by Mr Pallin, the appellant, against a parenting order made by the primary judge. The respondent, Ms Deave, is the other party in this appeal concerning parental responsibility. The appellant has filed an application seeking that the court provide the transcript for the appeal due to his financial constraints. The appellant's affidavit outlines his weekly income from various sources, which amounts to $800, and his unsuccessful attempts to sell personal assets to cover the estimated $6,000 cost of the transcript. The appellant argues that the significant cost of the transcript, given his limited financial resources, makes it necessary for the court to provide the transcript.

The legal issues before the court were whether it was in the interests of justice for the court to provide the transcript for the appeal and whether the appellant's application should be granted. The court considered the appellant's financial situation and the nature of the appeal. While the appellant's financial circumstances were acknowledged, the court noted that the appellant had not provided specific details about the content of the transcript that would support his grounds of appeal. The court held that the general complaints about the trial and judgment were insufficient to warrant the court providing the transcript. The court also noted that the appellant could proceed with his appeal without the transcript, albeit limited to arguments that do not rely on the transcript.

The court concluded that while the appellant's financial situation was dire, the general nature of the complaints about the trial and the judgment did not meet the threshold for the court to provide the transcript. The court found that the appellant's application was not demonstrably in the interests of justice. However, to prevent a deemed abandonment of the appeal due to the appellant's inability to afford the transcript, the court extended the time for compliance with an earlier order and discharged another order. The court also suspended the operation of a rule that would deem the appeal abandoned if the appellant failed to comply with the extended order. The court dismissed the application otherwise.

Orders

Orders of the court

NAA 163 of 2024

HBC 1339 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR PALLIN

Appellant

AND:

MS DEAVE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

9 SEPTMEBER 2024

THE COURT ORDERS THAT:

1. The time for the appellant’s compliance with Order 2 made by the appeal registrar on 12 August 2024 is extended to 20 September 2024.

2. Order 3 made by the appeal registrar on 12 August 2024 is discharged.

3. In the event of the appellant’s default in compliance with Order 1 hereof, the operation of r 13.22(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) is suspended, such that the appeal is not deemed abandoned and proceeds to hearing without a transcript.

4. The Application in an Appeal filed by the appellant on 6 August 2024 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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the appellant’s affidavit filed 6 August 2024, he sets out his financial circumstances. The appellant states that he receives the disability support pension, family tax benefit, rent assistance, and child support from the respondent, all amounting to $800 per week, see paragraph 9.1 of the appellant’s affidavit. The quote obtained from the court’s transcript provider, VIQ (Annexure A of appellant’s affidavit), estimated the costs of providing the transcript would be $6,000, at paragraph 5. He submits that after the costs of his expenses (including rent, utilities, groceries, car costs) there is a very small amount left that is insufficient to pay for the transcript, see paragraph 9.2. The appellant submits that he has tried to sell his car (worth $27,500) and furniture but has been unsuccessful, see paragraph 9.3. CONCLUSION This application is made in an appeal concerning a parenting order with respect to parental responsibility, not with respect to the living arrangements for the child (compare, for example, Bruce & Bruce [2023] FedCFamC1A 225 where the primary judge had made orders “of great significance”, changing the children’s primary carer). The likely cost of the transcript is around $6,000 which is a significant sum given the appellant’s very limited financial circumstances. It appears to be unlikely that the appellant could meet this cost without a grant of legal aid. As both parties are unrepresented it appears that the only significant cost in the appeal is that of the transcript – the parties will not incur costs with legal representatives. Simply raising grounds of appeal that may depend upon a transcript is not sufficient to demonstrate that an order for the court to meet the costs of the transcript is “demonstrably in the interests of justice”. Whilst there is no closed category of cases where orders may be made for the Court to provide a transcript for an appeal, it is usually necessary to provide specific details of what it is alleged will appear in the transcript (or in some cases that there is no relevant evidence in the transcript that would affect a ground that appears clearly on the terms of the judgment). The general nature of the complaints concerning the trial and the judgment of the primary judge made by the appellant in the context of the issues in this case are insufficient to demonstrate that it is in the interests of justice that the Court provide the transcript. I am not persuaded to make orders that the Court meet the costs of providing the transcript for this appeal. I note that the appellant is unrepresented and may wish to peruse grounds that are arguable without a transcript. As the appellant appears to have no real financial resources, he should not face a deemed abandonment of the appeal for failing to provide a transcript that he cannot afford: see, for example, Oakley & Millar (No. 2) [2022] FedCFamC1A 27 per Austin J and Oldham & Krantz [2024] FedCFamC1A 143. If the appellant chooses to proceed without a transcript, he will be confined to arguments that do not rely upon references to the transcript (either to make the argument or where the respondent could arguably have relied on the transcript to answer an argument).

Ratio Decidendi

Legal Principle Established

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