Pallin & Deave
[2024] FedCFamC1A 155
•9 September 2024
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 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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:
The appellant has appealed against final parenting orders made by the primary judge on 31 May 2024.
On 12 August 2024 the appellant was ordered to provide the consolidated digital transcript for filing by 27 August 2024: see Order 2 of the orders of 12 August 2024. Rule 13.22(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides that the appeal will be taken to be abandoned if the appellant fails to file the transcript by the date ordered.
On 6 August 2024, the appellant brought an Application in an Appeal seeking an order that the transcript be provided at the Court's expense.
The Court is not funded to provide transcripts for appeals. I outlined the relevant law in Marsters & Radcliffe [2023] FedCFamC1A 231:
[9] In Forbes & Bream (2008) 222 FLR 96, the Full Court (per Bryant CJ, Boland and Stevenson JJ) noted that the Court had “from time to time judiciously provided transcript to parties where it is demonstrably in the interests of justice to do so” (at [28]) saying that “[i]t has been assumed (without ever being decided) by this court in several cases that such a discretion exists” (at [31]). Their Honours considered that in addition to the “supervisory power of the Court” (see Fortnum & Fortnum (No 2) [2008] FamCAFC 73, per Finn J), the Court may provide the transcript of relevant parts of a matter as an incidence of the exercise of its powers to fulfill the statutory function set out in the appeal provisions (at [35]). However, it was noted that the power was unlikely to be exercised in “anything other than exceptional cases” (at [36]). Significantly, the government funds legal aid agencies to assist with court applications and does not fund the Court to provide transcripts for parties on appeal.
[10] In Sampson & Hartnett (2013) FLC 93-542, the appellant mother asked the Court to provide the transcript of a 14-day hearing as she said that she could not afford to obtain a copy from the transcription service. The Full Court identified a number of factors which may be relevant in support of an application (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.
Grounds of Appeal
The appeal challenges orders made by the primary judge for the respondent to have sole parental responsibility for the child of the parties (Orders 2 to 4), in circumstances where the child lives in the shared care of the parties in a week about arrangement (see Order 5). In his Notice of Appeal, the appellant seeks orders for him rather than the respondent to have sole parental responsibility (see Part F of the Notice of Appeal filed 28 June 2024).
The primary judge addressed the question of parental responsibility at [54] to [66] of the reasons for judgment, after a consideration of the evidence.
The appellant filed an affidavit on 6 August 2024 in support of the Application setting out the likely costs of the transcript, his financial circumstances, and briefly addressing the reasons that he says the transcript is required. The appellant filed written submissions on 21 August 2024 and the respondent filed written submissions dated 28 August 2024 opposing the Application.
At paragraphs 4 and 7 of his affidavit, the appellant complains that the primary judge refused to make determinations as to possible breaches of the Crimes Act 1914 (Cth). In the appellant’s written submissions he states that the potential for prosecutions under the Crimes Act are the “exceptional circumstances” that compel the Court to provide the transcript. The application before the primary judge was for parenting orders pursuant to the Family Law Act 1975 (Cth). The primary judge had no jurisdiction to hear prosecutions for breaches of the Crimes Act. There is no arguable case that the primary judge ought to have made determinations as to breaches of the Crimes Act in the parenting proceedings.
At paragraph 7 of the affidavit, the appellant alleges that the primary judge failed to have regard to “documentary evidence” relating to the child’s bullying that he says was ignored by the primary judge. The primary judge canvasses the appellant’s evidence on this topic, including references to various documents, at [31(a)] to [31(dd)]. The appellant has not identified the document that he alleges the primary judge ignored, nor whether her Honour refused to allow him to tender the document he refers to in the paragraph. If the document is an exhibit, the appellant can make submissions concerning the primary judge’s reasons for judgment without the need for a transcript. Nothing within the affidavit provides a specific allegation of matters that would be in the transcript that relate to this argument.
The second part of paragraph 7 concerns claims that the primary judge admitted as an exhibit a “Without Prejudice Offer to settle (1 March 2024)”. It appears that this refers to Exhibit A5 which is referred to in the reasons for judgment, see [31(aa)]. The primary judge addresses the question of whether this document was a genuine offer to settle at [45]. The appellant has not identified what is expected to be in the transcript that is relevant to this ground of appeal.
There are five grounds of appeal, each with a summary of the details of the ground. As the appellant is unrepresented it is appropriate to consider each of the grounds in the context of the current Application in an Appeal.
Ground 1
1. Biased or failed to treat the parties equally
During the trial, my evidence was repeatedly interruopted, by Her Honour and [Counsel] (for my ex-wife). I did not receive a fair hearing.
In her judgement, Her Honour consistently preferred my ex-wife's evidence. This was despite my affidavit evidence, to the effect that my ex-wife was prone to lies and embellishments. During the trial, I established quite clearly during Cross Examination that my ex-wife's Initiating Application was based on false accounts, which she had sworn as statements. I was able to rebut all of the allegations put to me. But this did not sway Her Honour, in her judgement.
The appellant has not provided any particulars of the interruptions alleged by him, nor what evidence he alleges “was based on false accounts”. That a primary judge consistently prefers the evidence of one party over that of another party does not show error: the role of a trial judge is to determine what evidence to accept. There are no particulars of what is expected to appear in the transcript that is relevant to this ground.
Ground 2
2. Made an error reaching the verdict
In my Case Outline, I was clear that Her Honour should give no weight to the evidence of the Court Child Expert, [Ms AA]. My contention was that [Ms AA] was subject to the Hearing Rule, when she decided not to interview [TT]. But she did not give me an opportunity to be heard. [Ms AA] produced a detailed report in 2023, and Her Honour placed a heavy reliance on that report in her judgement. It also seems to me quite likely that [Ms AA] perjured herself during her evidence on Day 3 of the trial.
In brief, the problem is that [Ms AA] stated she had a broad discretion to interview anyone, to produce her report. But this ignored the fact that she had received an email from [Mr RR], who at that time was the Applicant's lawyer. [Mr RR] asked that [Ms AA] not interview [TT], the son of my ex-wife's new partner [Mr CC]. In the weeks and months leading up to the Court Child Expert conducting her interviews, [TT] habitually spent overnight time at my ex-wife's house, where my son lives. So it was necessary for [Ms AA] to interview him. Yet, because she received the email from [Mr RR] in May 2023, [Ms AA] did not interview [TT].
I did endeavour to get to the truth of the situation, in my cross-examination of [Ms AA], but was not successful. If the letter to my ex wife from Court Children's Services (May 2023) shows that [TT] was expected to be interviewed, then there is a problem, and [Ms AA] may indeed have perjured herself at the trial. I tried to get to the bottom of this one, after the trial, but Court Children's Services blocked my efforts to get further information, on privacy grounds.
In substance, the appellant appears to argue that the evidence of the expert who prepared a family report should have been accorded no weight as she did not interview the son of the respondent’s partner (neither of which were living with the respondent at the time). The primary judge takes this factor into account when considering the evidence of the expert, see [32(i)]. It was for the primary judge to determine what weight to place upon the evidence of the expert in light of this circumstance. It is unremarkable that, after taking this factor into account and after observing the expert being cross-examined, the primary judge concluded that she could place weight upon the expert’s evidence. The appellant does not identify what is expected to appear in the transcript that he argues will show error on the part of the primary judge.
Ground 3
3. Failed to provide reasoning for the decision;
Her honour failed to provide reasons for why my emails to my ex-wife constituted family violence.
In the lead-up to the trial, my request to subpoena two [R Authority] officers to provide evidence about my son's experiences at primary school was denied. No reasons were provided.
The first part of this ground alleges an error of law by the primary judge that requires consideration of the relevant documents and the reasons for judgment. The primary judge made findings with respect to the emails at a number of different paragraphs in the judgment, see [20], [44] and [45]. There is no explanation by the appellant as to why a transcript is necessary for a ground that appears to challenge whether it was open to the primary judge to conclude that the emails were acts of family violence on the findings that were made in the judgment.
There was no appeal lodged against the interlocutory decisions concerning the issue of subpoenas and the time for appealing against those decisions has now expired.
Ground 4
4. Failed to adequately consider all available evidence
It is clear from Her Honour's judgement that she did not thoroughly examine my three affidavits from November 2023.
This ground is based upon documents that will appear in the Appeal Book. No particulars are given of any specific evidence which it is alleged the primary judge failed to consider.
Ground 5
5. Failed to uphold procedural fairness
Having been ordered into the Cross Examination Scheme in January 2024, I was placed at a significant disadvantage. I exited the Scheme, having been dropped by two lawyers, a week before the trial. When the trial commenced, Her Honour ordered that to ensure procedural fairness, I would be permitted to put some questions to my ex-wife, via ICL Counsel [Mr SS], in lieu of cross-examination. She said that I must have thought of many questions that I would like to ask my ex-wife, and I could provide these to [Mr SS], who would ask on my behalf.
Unfortunately, that morning I had been significantly delayed in getting to the court, by the traffic jam that placed [Suburb B] in gridlock. Her Honour was well aware that at the first break, what I actually had to do was move my car into a long-term carpark for the day. So it made no sense for her to Order that I speak to [Mr SS] at the break.
Without a chance to prepare for my 'opportunity', the questions that I invited [Mr SS] to put to my ex-wife were not well targeted or well crafted. They did not get to the root of the problem, which is that her evidence comprises a series of false statements which may attract the provisions of the Crimes Act 1914 (Cth). But it was the best I could manage, with the very limited opportunity that had been provided to me. I was denied procedural fairness.
The appellant has not challenged the order made pursuant to s 102NA of the Family Law Act which prevented him from personally cross-examining the respondent. The ground does not allege that the primary judge refused an adjournment application by the appellant based upon the conduct of his former solicitors, nor that her Honour refused an adjournment application to allow him to advise the Independent Children’s Lawyer of his questions. There is no evidence as to what is expected to appear on the transcript that is significant to this ground.
Appellant’s Financial Circumstances
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).
As neither party was represented there are no costs issues that arise from the Application in the Appeal.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 9 September 2024
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