Theophane and Hunt & Anor
[2015] FamCAFC 203
•23 October 2015
FAMILY COURT OF AUSTRALIA
| THEOPHANE & HUNT AND ANOR | [2015] FamCAFC 203 |
| FAMILY LAW – APPEAL – PROCEDURE – Application for review of Regional Appeal Registrar’s order filed by the mother – Review conducted on basis of a hearing de novo – Where the Application was filed out of time – Where the delay was adequately explained – Where there is no prejudice to the father to hear the review application. FAMILY LAW – APPEAL – PROCEDURE – Where the father has filed a Notice of Appeal against parenting orders of Tree J – Where the Regional Appeal Registrar made procedural orders, requiring the appellant father to prepare the appeal books – Where the father filed an Application for either the court or the mother pay for the transcripts – Where the Regional Appeal Registrar adjourned the issue of the transcript to be heard by the Full Court together with the substantive appeal – Where the mother challenges this decision as she is unable to properly prepare for the appeal – Where the father’s grounds of appeal require reference to the transcript –Where father says he cannot afford the transcript and has no intention of providing it – Where the father assures this Court he is able to argue his grounds by reference to the reasons and other documents – Where the requirement for transcripts is dispensed with – Application for review is allowed in part. |
| Family Law Act 1975 (Cth) s 102QB Family Law Rules 20014 (Cth) r 18.10, 22.18, 22.40 |
| Forbes & Bream [2008] FamCAFC 189 Gallo v Dawson (1990) 93 ALR 479 Jarrah & Fadel (No 2) [2014] FamCAFC 175 Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 Xuarez & O’Halloran & Anor [2013] FamCAFC 13 |
| APPLICANT: | Ms Hunt |
| RESPONDENT: | Mr Theophane |
| INDEPENDENT CHILDREN’S LAWYER: | Susan Gray | |||
| FILE NUMBER: | CSC | 1089 | of | 2007 |
| APPEAL NUMBER: | NA | 79 | of | 2014 |
| DATE DELIVERED: | 23 October 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 21 October 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 May 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms McMillan QC |
| SOLICITOR FOR THE APPLICANT: | O’Reilly Stevens Lawyers |
| RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McArdle |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
Orders
The Application in an Appeal filed by the mother on 8 October 2015 for an extension of time to review the Appeal Registrar’s orders of 15 May 2015 is allowed.
The Application for a review of those orders is allowed in part.
Order 2 of the Appeal Registrar’s orders of 15 May 2015 be set aside.
The father is at liberty to file and serve an Application seeking to adduce further evidence together with an affidavit of evidence attaching previous applications within fourteen (14) days of these orders.
The mother and the Independent Children’s Lawyer are permitted to file a response to the father’s further affidavit within seven (7) days after the father has filed and served such application and affidavit.
The costs of this Application be reserved to the Full Court of the Family Court of Australia.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Theophane & Hunt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 79 of 2014
File Number: CSC 1089 of 2007
| Ms Hunt |
Applicant
And
| Mr Theophane |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Ms Hunt (“the mother”) filed an Application in an Appeal on 8 October 2015 seeking a number of orders (set out in detail below). The Application is in relation to a Notice of Appeal filed by Mr Theophane (“the father”) against orders made by Justice Tree on 24 November 2014, which (among other things) gave the mother sole parental responsibility of X Theophane (“the child”) and restricted the father’s communication with the child to cards and letters. The father was also declared vexatious pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”).
The matters to which this application relates are procedural orders made by Appeals Registrar Kane (“the Appeals Registrar”) on 15 May 2015. The father originally sought orders requiring the Appeals Registrar prepare and file the appeal books, and the costs be “reserved”. The father also sought orders in relation to the provision of the transcript, arguing the costs of the preparation of the transcript should be borne by the other parties or the Court. The Appeals Registrar declined the application in relation to preparation of the appeal books, and adjourned the issues relating to the transcript to the hearing before the Full Court at the same time as the hearing of the appeal.
The appeal is listed for hearing on 24 November 2015.
As the father acknowledged in this hearing, the Appeal Registrar and staff of the court have assisted him in the preparation of the appeal books.
The mother’s Application seeks an extension of time to review the Appeal Registrar’s decision, and specifically that the father be ordered to provide copies of the transcripts, as it is submitted transcripts are necessary in order to respond to his submissions and for the court to determine the father’s appeal.
The mother seeks the following orders:
1.That the [father] pay the [mother’s] costs fixed in the sum of $1,320.
2.That there be an extension of time to review the Registrar’s decision of 15 May 2015.
3.The [mother] be granted an extension of time of fourteen (14) days after the review of the Registrar’s decision, to file the Summary of Argument.
4.That the [father] provide a copy of the transcript of the proceedings before Justice Tree on 4, 5, 6, 7, 8, 9, 11, 12 and 13 August 2014, within twenty-eight (28) days with failure to do so having the effect of the Appeal being deemed to be abandoned.
5.That in the event that the [father] provides the transcript within […] twenty-eight (28) days, the [mother] be granted an extension of time of twenty-one (21) days after receipt of the transcript, to file an Amended Summary of Argument.
The Independent Children’s Lawyer (“the ICL”) supports the mother’s application. In written submissions, the ICL argued:
14.It is submitted that given the difficulty faced in interpreting the meaning of the ground of appeal and the basis of the argument of the [father], it is not possible to properly prepare a meaningful Summary of Argument in response without reference to the Transcript of the Trial. Further, the Transcript will be important, it is submitted, during the hearing of the Appeal. Should the [father] seek to refer to specific examples of matters to support the Appeal referral to the Transcript will be available to the Court and the parties.
Nature of an Appeal from an Appeal Registrar’s Order
Pursuant to r 22.40 of the Family Law Rules 2004 (Cth) (“the Rules”), a party can apply for a review of an Appeal Registrar’s order relating to the conduct of an appeal. The party must file an Application in an Appeal within 14 days after the order is made. It can be seen that the application is over four months out of time.
While there is guidance in r 18.10 on the powers of the Court in reviewing decisions of a registrar, there is no similar provision contained in the Rules in relation to appeals and the review of an Appeals Registrar’s order.
The case law relating to hearing de novo and reviews of Appeal Registrar decisions is set out in my judgment of Xuarez & O’Halloran & Anor [2013] FamCAFC 13, and it is not necessary in this case to say any more on that topic.
In determining this matter, in addition to the material filed for this Application, I will also take into account all the material before the Appeals Registrar.
Background and Reasons of the Appeals Registrar
The father filed a Notice of Appeal on 19 December 2014 against the orders of Tree J made on 24 November 2014. As per the usual course, the Appeals Registrar made procedural orders on 2 March 2015 regarding the progression of the appeal, including that the father would be responsible for preparing the appeal books. At that time the father indicated he wished to file an application in relation to the preparation of the appeal books and the transcript.
The father filed an Application in an Appeal on 17 March 2015, where he sought the Appeals Registrar prepare and file the appeal books, and reserve the issue of costs. The Appeals Registrar inferred this request to mean the Court would meet the costs associated with preparing the appeal books. The father also sought orders in relation to the provision of the transcript. In [1] of his application, he asked that the court pay for the transcripts and in [4] that the mother and the ICL pay for the transcripts. The mother and the ICL each filed a response resisting the father’s application.
Decision of the Appeals Registrar
Appeal Books
As the father had previously foreshadowed his intention to make an application regarding these issues, and as he was a self-represented litigant, the Appeals Registrar drew each parties attention to r 22.18 of the Rules and the decisions of Xuarez & O’Halloran and Anor [2013] FamCAFC 13 and Jarrah & Fadel (No 2) [2014] FamCAFC 175 (at [9]).
The mother and ICL each submitted that these authorities supported the dismissal of the father’s application, whereas he distinguished his case on the facts as he asserted them to be.
Rule 22.18 provides:
Preparation of appeal books
(1)The appellant or, if so ordered, the cross-appellant is responsible for preparing and filing the appeal books, including arranging to obtain any transcript required to be included in the appeal books.
(2)If a Judge or Regional Appeal Registrar is satisfied that preparing the appeal books would impose exceptional hardship on the appellant, the Judge or Regional Appeal Registrar may order either of the following to prepare and file the appeal books:
(a)a respondent;
(b)the Regional Appeal Registrar.
Note:If the Regional Appeal Registrar prepares the appeal books, the appellant or cross-appellant (if so ordered) is still responsible for obtaining the transcript (see rule 22.27).
…
The father submitted the following reasons as demonstrating the “exceptional hardship” which would be caused if required to prepare the appeal books:
14.…
a)He is financially unable to afford to prepare appeal books
b)He has written on a number of the documents required for the appeal books and would therefore need to obtain ‘clean’ copies of the documents from the Court at a cost per photocopy.
c)That it is in the interests of justice that his appeal be heard, which I take to be a submission that the grounds of appeal contained in the Notice of Appeal have merit.
The Appeals Registrar considered the father’s evidence of his financial position (at [15] – [18]), which was contested by the mother and the ICL (at [19] – [20]). The Appeals Registrar concluded that on the limited nature of the hearing, it was difficult to form a concluded view but it was appropriate to at least resolve the father was of limited means (at [22]). The Appeals Registrar noted the father had been previously granted an extension of time in which to prepare the appeal books (at [24]). The Appeals Registrar considered my earlier decision in Xuarez & O’Halloran & Anor [2013] FamCAFC 13, and specifically [33] – [38] and [50] of those reasons.
In support of his “exceptional hardship” claim, the father also explained that he did not have “clean” copies of the material in which to copy for the appeal books, however the Appeals Registrar noted he had made no attempts to request copies of the court file (at [27]). The father submitted that he was unable to afford such requests (at [28]).
The Appeals Registrar concluded that father did not demonstrate that exceptional hardship would be imposed by preparing the appeal books, as the circumstances of his financial means were not exceptional (at [36]).
The father has not sought to review this decision. With considerable assistance from the Registry, the appeal books have been prepared and filed, save for the transcripts. The father filed his summary of argument on 21 September 2015.
Transcripts
The Appeals Registrar ordered that the issue of the provision of transcripts be adjourned to be heard by the Full Court, together with the substantive appeal (at [4]).
No reasons were provided in relation to this decision. However, it should be noted that this decision is commonly made, as experience demonstrates that transcripts are often not required, or only a small proportion of the transcript is required. To demand that a litigant in person provide a transcript of many days of a hearing can be onerous and delay the hearing of an appeal. The decision in relation to transcripts very much depends on the content of the grounds of appeal and the matters ultimately argued. It can also be difficult in the early stages after the filing of an appeal, to predict how those grounds will be argued, especially by a litigant in person.
The Mother’s Application
Application for an extension of time
As noted above, r 22.40 requires the review application be filed within 14 days after the order is made. The Appeal Registrar’s orders were delivered on 15 May 2015; the mother did not file the application until 8 October 2015, over four months out of time.
The principles for an extension of time are well known. Reference is often made to Gallo v Dawson (1990) 93 ALR 479 at 480 – 481 and the classic factors, noting however they are not definitive or exhaustive:
a)Whether there is an adequate explanation for the delay;
b)The proposed orders having some merit; and
c)That any prejudice to the respondent can be compensated by an order for costs.
The intention is to ensure justice is done between the parties.
Counsel for the mother submits that it was only upon receipt of the father’s summary of argument for the substantive appeal, filed 21 September 2015, that she became aware of the father’s arguments, including that the father intended to refer to evidence of experts given orally during the trial. The mother argues that no prejudice could be caused to the father if an extension of time to review the Appeals Registrar’s decision was granted, as he has already filed his material and it is not asked that the appeal dates be vacated.
The delay is adequately explained, and it is clear, especially in light of his stated position, it will not cause prejudice to the father to hear the review application.
Transcript
The mother challenges the decision to adjourn the issue of the provision of transcripts to a Full Court hearing, on the basis that counsel is unable to properly prepare for the appeal and that unnecessary expense may result. To appreciate this submission, reference should be made to the grounds of appeal contained in the Notice of Appeal, as usefully summarised in the written submissions of the mother:
28.…
(a)the Judge was biased;
(b)he was not given procedural fairness;
(c)the evidence of the Family Consultant was biased; and
(d)the issue of a s. 128 certificate
all must relate to the conduct of the Trial…
29.Whilst it must be said that a number of the grounds are simply bald assertions and thus it may be said have little merit, there are others where there is some apparent description of passages of evidence by the father cited in support…
As carefully explained by counsel for the mother, the submissions of the father refer in detail to the evidence of a number of witnesses, including expert and professional witnesses. Some of those witnesses did not provide affidavits, this evidence is solely to be found in the transcript. In addition, the father makes assertions regarding the conduct of the trial over the eight days including a lack of procedural fairness and bias on the part of the trial judge.
The mother submits that it is more appropriate to deal with the issue of the transcript now, rather than hold the matter over to the substantive hearing, possibly creating further delays and at the expense of the Legal Aid Queensland (at [13] of the mother’s written submissions).
Substantial submissions were filed on behalf of the mother setting out the long history of this matter, which commenced in 2007 when the mother first filed an application for parenting orders. These proceedings continue to cause considerable distress to the mother, and such distress was a central feature of the proceedings before the primary judge. It is clear that no party seeks any delay in the hearing of the appeal.
It seems correct that the transcript is ideally required in this case for the hearing of the appeal. The father says he is unable to afford the provision of transcripts and clearly has no intention of providing it. To adjourn that question to the hearing by the Full Court, in this case, would most likely be a waste of resources.
The mother and the ICL (both represented by Legal Aid Queensland) are unable to fund the provision of the transcript. The affidavit of Bevlee Reaston filed on 8 October 2015 estimates that the cost of the transcripts would be in the order of at least $10,000. There is no direct evidence by the father as to his capacity to pay for the transcripts other than a Financial Statement filed 17 March 2015. The mother asserts he has such capacity, including the sale of two motor vehicles in recent months. This is denied by the father.
The mother is not in a position to pay or contribute to the costs of transcripts. The mother has never received child support from the father. The submissions record that she has expended some $400,000 on legal fees and is now in receipt of legal aid, including for the appeal. The ICL is also funded by Legal Aid Queensland. It is submitted by counsel that there is most likely little merit in the appeal itself. The father’s summary of argument contains numerous assertions, allowing for the fact that he is a litigant in person, there is little reference to the usual appeal principles and some of it is simply incomprehensible.
During the hearing of this application, the father was asked to explain how he intended to argue his case without the transcripts. The father repeatedly assured the court he did not require the transcripts, and if the mother wished to have them she should bear the cost. As the father is a litigant in person, it was explained to him that if he intended to make arguments surrounding procedural fairness and alleged bias of the primary judge, it was the usual course to use transcripts to demonstrate error and he may be called upon by the Full Court to show where in the transcript the error occurred. The father, again, assured the court he could establish these grounds from the reasons and other documents.
In light of these admissions by the father, counsel for the mother, notwithstanding her expressed concerns, did not object to setting aside the orders requiring the transcript. It clarified the position and would enable the mother and the ICL to finalise a summary of argument.
The only other alternative is that the court provides the transcript. Apart from the father’s original application, no party asked for this order. In any event there is no feature of this case that should attract such an unusual step.
A useful analysis was provided in the Full Court decision of Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 (“Sampson & Hartnett”). They referred to the decision of Forbes & Bream [2008] FamCAFC 189, where it was noted a court may exercise discretion to order transcripts if it is in the interests of justice. The Full Court in Sampson & Hartnett took this one step further, and provided a list of factors relevant in the support of such applications:
16.While the list of factors is not closed, those that we think may be of relevance in support of such an application are:
(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.
The circumstances of this case make it clear that such discretion should not be exercised at this time. The father assures this Court he does not require the transcript to demonstrate his grounds of appeal have merit. The onus is on the appellant father to demonstrate that he has an arguable appeal. Of course, the Full Court hearing the appeal may independently form the view that some parts of the transcript are necessary for a proper determination of the matter.
costs
It was sensibly agreed that the matter of costs would be reserved to the Full Court hearing of this appeal.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 23 October 2015.
Associate:
Date: 23 October 2015
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