Pinson & Pinson
[2021] FedCFamC1A 85
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Pinson & Pinson [2021] FedCFamC1A 85
Appeal from: Pinson & Pinson (No 4) [2021] FCCA 1844 Appeal number(s): NOA 44 of 2021 File number(s): BRC 3734 of 2019 Judgment of: TREE J Date of judgment: 14 December 2021 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Where the appellant mother seeks that the Court purchase transcript for the purpose of her appeal – Financial capacity – No exceptional circumstances such that the Court should fund the transcript – Dispensation of transcript not appropriate – Application dismissed – No order as to costs. 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: 12 Date of hearing: 9 December 2021 Place: Cairns The Appellant: Self-represented litigant The Respondent: Self-represented litigant Counsel for the Independent Children's Lawyer: Mr Hodges Solicitor for the Independent Children's Lawyer: Barbara Fox Solicitor ORDERS
NOA 44 of 2021
BRC 3734 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS PINSON
Appellant
AND: MR PINSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
TREE J
DATE OF ORDER:
9 DECEMBER 2021
ON 9 DECEMBER 2021 THE COURT ORDERED THAT:
1.The Application in an Appeal filed 25 November 2021 be 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Pinson & Pinson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
On 12 August 2021, a judge of the then Federal Circuit Court of Australia made final parenting orders in relation to the parties’ only child, X, presently 10 years of age. By Amended Notice of Appeal filed 20 August 2021, Ms Pinson (“the mother”) appeals against those orders. That appeal is opposed by Mr Pinson (“the father”).
On 27 September 2021, an Appeals Registrar, amongst other things, ordered that on or before 4.00 pm on Friday 26 November 2021, the mother was to file a transcript of the proceedings before the primary judge. However on 25 November 2021, the mother filed an Application in an Appeal seeking that either “the [C]ourt provide the transcript” or “the appeal proceed without the transcript in the proceedings”. On 9 December 2021, I heard that Application in an Appeal, and ordered that it be dismissed, for reasons to be later provided. These are those reasons.
SHOULD THE COURT OBTAIN THE TRANSCRIPT
This Court is not funded to pay for transcript for appellants, and indeed there is no provision in either the relevant legislation or rules of court which expressly permits it. However the authorities establish that nonetheless the Court 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 (“Sampson & Harnett”) at [14] and [83]). The Full Court in Sampson & Hartnett has provided some guidance as to the factors that a Court may take into account in determining whether or not to exercise such 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 appellant 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 mother relied upon a quote which demonstrated that transcript of the trial would cost $6,762.00. Although in her affidavit filed in support of the application, she claimed to be unable to pay that cost, in her Financial Statement of 26 November 2021, the mother disclosed that she owned property being worth “$600,000 plus” together with superannuation with a gross value of $369,638.93. Although she estimated that her liabilities were $380,000, nonetheless this means that, even on her own evidence, she has net assets of $220,000. More, those assets include $49,198.80 in two bank accounts.
Whilst the mother asserts that these funds are needed to repay her father for his assistance in relation to earlier legal representation, not only was no affidavit filed from him, but in her oral submissions the mother also said that the money was needed to support X “when she returns to live with me”.
This matter alone demonstrated that there were not exceptional circumstances such that the Court should fund the transcript, nor is it otherwise in the interests of justice to do so.
It is thus unnecessary to traverse the considerations listed in Sampson & Hartnett, as the mother can plainly afford to pay for the transcript of the appeal which she has chosen to bring.
SHOULD THE PROVISION OF TRANSCRIPT BY THE MOTHER BE DISPENSED WITH
Ultimately it appeared that the mother did not press this aspect of her application, as when it was explained to her that at least three grounds of her appeal (being Grounds 11, 13 and 14) could not succeed absent transcript, she would not countenance those grounds not being able to be argued by her, and reiterated that she needed the transcript in order to argue them.
I attempted without success to investigate with the mother whether or not there could be some restriction of the transcript which she was obliged to provide, however it became apparent that little could be done to reduce the amount of transcript needed, as Grounds 11, 13 and 14 apparently raise matters which occurred on all three days of the trial. Therefore no narrowing of the scope of the transcript required was able to be identified.
Given that the mother refused to countenance that Grounds 11, 13 and 14 would be lost to her, it is not appropriate to dispense with the requirement for the provision of transcript.
OUTCOME
No aspect of the mother’s Application in an Appeal succeeds. It was therefore dismissed.
COSTS
Neither the father nor the Independent Children's Lawyer sought any order for costs upon the application being dismissed. There was therefore no order as to costs.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 14 December 2021