Peake & Cousins
[2023] FedCFamC1A 21
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Peake & Cousins [2023] FedCFamC1A 21
Appeal from: Cousins & Peake (No 2) [2022] FedCFamC2F 1660 Appeal number: NAA 260 of 2022 File number: MLC 4941 of 2014 Judgment of: AUSTIN J Date of judgment: 7 March 2023 Catchwords: FAMILY LAW – APPEAL – Application in an appeal – Supplementary appeal book – Where the applicant seeks an extension of time to file – Where there can be no prejudice as the appeal book itself is not yet ready – Relief from transcript – Where the applicant inconsistently seeks both relief from the burden to file a transcript and an extension of time to comply – Where the applicant’s grounds of appeal are likely to be more easily assessed with the transcript available – Where the applicant is granted a 10 day extension to file both the transcript and the supplementary appeal book – Application otherwise dismissed. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.18, 13.22 Cases cited: Peake & Cousins (No.2) [2019] FamCAFC 95 Number of paragraphs: 19 Date of hearing: 7 March 2023 Place: Newcastle (via video link) The Applicant: Litigant in person The Respondent: Did not participate The Independent Children's Lawyer: Did not participate ORDERS
NAA 260 of 2022
MLC 4941 of 2014FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS PEAKE
Applicant
AND: MR COUSINS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
AUSTIN J
DATE OF ORDER:
7 MARCH 2023
THE COURT ORDERS THAT:
1.The time for the applicant’s compliance with Orders 2 and 4 made by the appeal registrar on 8 February 2023 is extended until 4.00 pm on Friday 17 March 2023.
2.Otherwise, the Application in an Appeal filed on 24 February 2023 is 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 Peake & Cousins has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
The applicant is appealing from the orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 28 November 2022 dismissing the three contempt applications she brought against the respondent and ordering her to pay the costs of both the respondent and the Independent Children’s Lawyer (“the ICL”) in respect of the contempt applications.
On 8 February 2023, the appeal registrar made procedural orders which, relevantly, permitted and required the applicant to file and serve a supplementary contested appeal book by 22 February 2023 (Order 2) and to email the digital transcript of the hearing before the primary judge to the appeal registrar by 1 March 2023 (Order 4).
Presently under consideration is an Application in an Appeal filed by the applicant on 24 February 2023 by which she seeks these orders:
1.Order for a very short extension of time of 7-14 days to file and serve the Supplementary Book (Contested) pursuant to Procedural Direction Orders, Order 2 dated 8 February 2023
2.Order for the Southern Appeal Registry of the Federal Circuit and Family Courts of Australia to provide a copy of the digital court transcript of Hearing 28 November 2022 before [the primary judge] to [the applicant].
3.Order for an extension of time for [the applicant] to email the digital transcript for filing to the appeal registry, pursuant to Order 4 of Procedural Direction Orders dated 8 February 2023.
The applicant relied upon her affidavit filed on 24 February 2023 in support of the application. In essence, the genesis of the applicant’s request for an extension of time to comply with the appeal registrar’s orders is her illness during the week before her application was filed. The applicant deposed this:
21.Consequentially, between the past week with elevated stress and decrease immune system and being exposed to medical centres, I developed covid-like symptoms of severe sore throat, migraines, dry cough and chest pains. I tested positive on a RAT for covid-19 and have been self-isolating for the past 5 days.
(Affidavit of the applicant filed 24 February 2023)(As per the original)
The applicant and the appeal registrar exchanged emails on 22 and 23 February 2023 about an informal extension of time, but the request was refused because the appeal registrar was unaware whether the other parties to the appeal consented. Quite reasonably, the appeal registrar said in her email to the applicant:
In the absence of the consent of the other parties to the appeal to your request, the extension of time is denied.
If the other parties to the appeal consent or do not oppose the application and provide evidence of that consent/absence of opposition in writing to the appeal registry, an order will be made in chambers extending the dates …
The applicant did not provide the appeal registrar with any evidence of such consent or acquiescence by the other parties, but rather filed this application. Neither the respondent nor the ICL appeared to oppose the application when it was listed before the Court for hearing today (Tuesday 7 March 2023).
Supplementary Appeal Book
No orders were made by the appeal registrar about the preparation of the appeal book by the applicant, in which event it may be assumed the appeal registrar is taking responsibility for its preparation. As yet, the appeal book is not ready, but likely soon will be.
The supplementary contested appeal book was due to be filed by the applicant by 22 February 2023. There is no prejudice to the respondent and the ICL by the delayed filing of the contested appeal book if the appeal book itself is not yet ready.
The applicant will have until Friday 17 March 2023 to file the supplementary contested appeal book. She conceded it could be prepared and filed within seven days when the application was filed on 24 February 2023, but she has 10 days from now.
Transcript
The burden to file transcript in any appeal lies upon the appellant, unless that burden is alleviated (rr 13.18(2)(b) and 13.22(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)).
The relief sought by the applicant here is inconsistent. By proposed Order 2 she seeks that the burden of acquiring transcript instead falls to the Court, but by proposed Order 3 she seeks merely an extension of time within which to comply with the burden cast upon her by the appeal registrar’s orders. Inferentially, the applicant seeks such relief in the alternative.
As was observed in Peake & Cousins (No.2) [2019] FamCAFC 95 at [17]:
Despite some past reservations about this Court’s power to order the provision of transcript for a party (WJD & TEK (1998) 72 ALJR 1323; Forbes & Bream (2008) 222 FLR 96 at [30]-[34]), the Court has proceeded on the basis that it will do so in exceptional cases (Forbes & Bream at [35]-[36]). The considerations which will influence whether such an order might be made in the exercise of discretion have been identified and include (see Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 at [16]):
(a) Whether the case is financial or child-related;
(b)Whether the whole or only part of the transcript is integral to the appeal;
(c)Whether the appellant can defray any part of the transcript cost;
(d)The proportional cost of the transcript to the anticipated cost of the appeal;
(e)The prima facie merit of the appeal; and
(f)Whether the Full Court hearing the appeal should make the decision about transcript.
The underlying judgment subject to the appeal is neither financial nor child-related. It concerns contempt applications, dismissed because the applicant could not establish prima facie cases.
The transcript would undoubtedly be useful in the appeal because two of the appeal grounds contend the primary judge conducted the hearing in November 2022 in such a way as to exhibit apprehended bias and to deprive the applicant of procedural fairness. Those grounds are likely to be more easily assessed with the transcript available.
The applicant implied her difficult financial circumstances prevented her from acquiring transcript, but gave no evidence to verify the fact. She deposed only this:
26.My request for the Southern Appeal Registry to provide the digital copy of the transcript to me for filing to the appeal registry is on the grounds that justice should be readily available to all those who seek it and not just to the wealthy.
(Affidavit of the applicant filed 24 February 2023) (Emphasis in the original)
It should be noted that, in the email correspondence with the appeal registrar, the applicant did not ask for the Court to provide the transcript. She asked only for an extension of time to provide it.
The hearing before the primary judge was confined to 28 November 2022. The contempt applications were dismissed because it was found there was no prima facie case for the respondent to answer. One of the applicant’s complaints in the appeal is that there was no cross-examination, from which it may be imputed the judgment was given by reference to the applicant’s unchallenged evidence and submissions made by or on her behalf, in which event the transcript must be short and hence relatively inexpensive to acquire.
The applicant has failed to demonstrate the exceptional circumstances which would warrant the Court assuming her financial responsibility to acquire the transcript. That burden will remain with her, but she is granted an extension of time within which to acquire and email it to the appeal registrar.
In email correspondence with the appeal registrar on 22 February 2023, the applicant sought an extension until 13 March 2023 to file the transcript. She will instead be given until 17 March 2023 – the same date by which she must file the supplementary contested appeal book.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 7 March 2023
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