Trahn & Long (No. 2)
[2008] FamCAFC 194
•11 December 2008
FAMILY COURT OF AUSTRALIA
| TRAHN & LONG (NO. 2) | [2008] FamCAFC 194 |
| FAMILY LAW - APPEAL – REFUSAL OF STAY – Where trial Judge refused to stay the operation of parenting orders pending the hearing of the appeal against those orders – Where appeal against discretionary judgment –Whether refusal to grant stay would render the appeal nugatory – Where trial Judge appropriately gave significant weight to 15 year old child’s firmly held views– Whether trial Judge erred in failing to consider refusal to stay certain orders would permit child to travel overseas – Error by trial Judge established – Where appropriate for Full Court to re-exercise the discretion –Where, in light of age of child, strength of views and absence of contact for several years, there was little utility in allowing appeal in part to prevent overseas travel – Where on re-exercise Full Court came to same result as trial Judge – Appeal against refusal of stay dismissed. FAMILY LAW - APPLICATION IN A CASE – TRANSCRIPT – Where applicant / appellant father sought that the Court provide transcript at its own cost – Where case not ‘exceptional’ – Where best interests of child did not require provision of transcript – Application dismissed. FAMILY LAW - APPLICATION IN A CASE – REGISTRAR TO PREPARE APPEAL BOOKS – Where applicant / appellant father sought that the Registrar be ordered to prepare the appeal books – Where no basis established to support the order sought – Application dismissed. FAMILY LAW - COSTS – Where applicant / appellant father largely unsuccessful – Where Independent Children’s Lawyer sought a costs order against the applicant / appellant father – Where substantive appeal still pending – Costs reserved to the determination of the substantive appeal. |
| Family Law Act 1975 (Cth) – s 118 Family Law Rules 2004 (Cth) – r 22.24 |
| Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685 Clemett and Clemett (1981) FLC 91-013 Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 Forbes & Bream [2008] FamCAFC 189 House v The King (1936) 55 CLR 499 Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 JRN & KEN & IEG & BLG (1998) 72 ALJR 1329 |
| APPELLANT: | Mr Trahn |
| RESPONDENT: | Ms Long |
| INDEPENDENT CHILDREN’S LAWYER: | S P Nasti |
| FILE NUMBER: | PAF | 2203 | of | 1994 |
| FIRST APPEAL NUMBER: | EA | 106 | of | 2008 |
| SECOND APPEAL NUMBER: | EA | 125 | of | 2008 |
| DATE DELIVERED: | 11 December 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Warnick, Boland & Dessau JJ |
| HEARING DATE: | 4 December 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 August 2008 21 October 2008 |
| LOWER COURT MNC: | [2008] FamCA 730 [2008] FamCA 922 |
REPRESENTATION
| ADVOCATE FOR THE APPELLANT: | Mr Trahn appeared in Person with the assistance of an interpreter |
| ADVOCATE FOR THE RESPONDENT: | There was no appearance for or on behalf of Ms Long |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Braine |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Sam Nasti of SP Nasti & Co |
Orders made 4 december 2008 in respect of appeal no ea 106 of 2008
That the appellant be granted leave to file the Affidavit of Service sworn on 27 November 2008.
That the applications in paragraphs 2 and 3 of the application in a case filed on 21 November 2008 be dismissed.
That the hearing of appeal EA106 of 2008 be adjourned and the time fixed for the filing of the appeal books in Order 6 of the orders of Registrar Halbert made on 18 November 2008 be vacated.
That the question of a further date for the hearing of the appeal and a date for the filing of the appeal books be adjourned to a date and time to be fixed by the Appeals Registrar.
That the independent children’s lawyer’s costs of and incidental to the application in a case filed 21 November 2008 with respect to appeal EA106 of 2008, be reserved.
Orders made 4 december 2008 in respect of appeal no ea 125 of 2008
That the appeal EA125 of 2008 be dismissed.
That the independent children’s lawyer’s costs of and incidental to appeal EA125 of 2008 be reserved.
IT IS NOTED that publication of this judgment under the pseudonym Tranh & Long is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 106 of 2008; EA 125 of 2008
File Number: PAF 2203 of 1994
| Mr Trahn |
Appellant
And
| Ms Long |
Respondent
REASONS FOR JUDGMENT
Introduction
S’s (the child’s) parents, Mr Trahn (“the father”) and Ms Long (“the mother”) have been in dispute about his parenting arrangements for almost the whole of his life. He is presently aged 15 years. On 13 August 2008 Coleman J made orders at the conclusion of defended parenting proceedings. Among the orders made is an order that the child, unless he wishes to do so, spend no time with the father. The father has appealed the trial Judge’s orders.
On 21 October 2008 the father sought a stay of the trial Judge’s orders pending the hearing of his appeal. His Honour refused the father’s application for a stay and gave reasons for so doing and the father has appealed that refusal.
The father’s stay appeal and his appeal against the parenting orders were expedited by Boland J on 11 November 2008. As it transpired the father was unable to prepare appeal books in time for his substantive appeal to be heard at the same time as his stay appeal.
On 21 November 2008 the father filed an application in a case in which he sought, in broad terms, orders that transcript of the hearing before the trial Judge be provided to him at the Court’s expense, that the Appeal Registrar prepare the appeal books, and the dates for filing appeal books be extended.
We dismissed the father’s stay appeal and his applications concerning the transcript and preparation of the appeal books. These are our reasons for our orders made 4 December 2008.
It is convenient to record at the commencement of these reasons that the father appeared unrepresented with the assistance of a Cantonese interpreter, and the independent children’s lawyer (“ICL”) appointed for the child was represented by Mr Braine of counsel. The mother did not appear. We noted that the Appeal Registrar received a facsimile transmission from the mother in which she advised she was unable to appear and also unable to file an “application and affidavit in support” because she was currently overseas. The mother sought we treat her facsimile as an informal request for costs.
The ICL opposed the father’s appeal.
Brief history of the litigation
The material in the stay appeal book was limited, but it was unnecessary for us to have regard to extensive background material to determine the stay appeal. We did, however, have the benefit of the trial Judge’s reasons in respect of his orders made 13 August 2008, and copies of earlier parenting orders made on 19 July 2001 and 10 June 2005.
The trial Judge’s reasons in the parenting proceedings disclose his Honour incorporated into those reasons a chronology provided by the ICL dated 8 August 2008. That chronology was set out in full by Boland J when determining the expedition application. Without repeating exhaustively that chronology we note the following matters which give context to these reasons.
The father was born in July 1952 and the mother was born in February 1969. The parties met in China in 1990. They were married in August 1992 and were divorced in 1995.
The parties’ only child, S, was born in October 1993. He was aged almost 15 years at the date of the hearing before the trial Judge.
Litigation between the parties over the child commenced with applications filed originally in the Local Court, Liverpool, NSW in 1994. Those proceedings were subsequently transferred to the Family Court at Parramatta. Thereafter the chronology reveals a long history of litigation between the parties in respect of the child. As well, it contains reference to the making of Apprehended Domestic Violence Orders against the father for the protection of the mother, the last such order being an order made in the Local Court at Sutherland in 2001 expressed to be in force for 8 years.
During 2001/2002 various applications of the father were before the Court, including two contravention applications which were dismissed. On 19 July 2001 interim parenting orders were made which, in summary, provided for the child to live with the mother, and have contact (as it was then described in the Family Law Act 1975 (Cth) (“the Act”)) with the father each alternate weekend and for half school holidays. Both parties were restrained from removing the child from Australia, but special provision was made for the mother to take the child out of Australia for two weeks, subject to her lodging $10,000.00 with the Court by way of security.
On 28 May 2005 a “Risk of Harm Report” was made by the Department of Community Services following notification by the child’s school of alleged abuse of the child by the father.
On 10 June 2005 orders were made by Collier J which again, subject to the mother lodging security of $12,000 with the Court, permitted the mother to remove the child from Australia for a defined period.
In June 2005 various applications filed in the Federal Magistrates Court, Parramatta by the father were dismissed.
On 10 February 2006 Judicial Registrar Halligan found the mother had contravened orders.
After three days of hearing before Waddy J in September 2007 the father’s contravention application was dismissed at his request on 23 April 2007.
The parenting applications which culminated in the orders of Coleman J of 13 August 2008, were confined to three issues:
·whether there should be an order for equal shared parental responsibility or an order for sole parental responsibility in favour of the mother;
·whether the child should be ordered to spend time with the father each alternate weekend, or as the mother sought, that there be no order for the child to spend time with the father unless the child wished to do so; and
·whether the mother should be able to remove the child from the jurisdiction for the purpose of visiting family members in China.
Also before his Honour was an application the father be declared a vexatious litigant and an order made against him pursuant to s 118 of the the Act.
The parenting orders made by the trial Judge, and subject of the substantive appeal, are set out in full later in these reasons.
Grounds of appeal against the refusal of stay
The father relied on his Notice of Appeal filed 28 October 2008. The father relied on four grounds of appeal. We pause here to note that the grounds relied on in respect of the stay appeal are in almost identical terms to the grounds of appeal in the father’s Notice of Appeal filed 10 September 2008 in respect of the parenting orders. We reproduce, without any corrections, the grounds as they appear in the Notice of Appeal filed 28 October 2008:
1.Justice Coleman did not processing full hearing under the Family Act on 11, 12, 13 of August 2008 and processing decision on 13/08/2008 without interpreter.
2.Justice did not allowed I provided the orders I was seeking as he promised and he refused I gave envidence and sumarize the case for rehearing.
3.Justice did not allowed me respond the submissions service by the childen’s lawyer, Mr Braine as he promised in court on 28/04/2008.
4.Justice Coleman did not concerned envidence on 10, 11, 12 September 2007 giving by both parties and hearing of the proceeding before Justice Waddy.
The father sought, in the event that his appeal was successful, that his application for a stay of the orders made on 13 August 2008 be granted. In his Summary of Argument filed on 1 December 2008 the father set out his arguments in respect of both the substantive appeal and the stay appeal. Those submissions essentially repeated the grounds as set out in the Notice of Appeal.
As the father was self represented and conducted his appeal with the assistance of an interpreter, we endeavoured to ascertain the nature of his complaint against the trial Judge’s refusal to stay all of the orders made on 13 August 2008. The father’s appeal was argued on the basis that:
·the trial Judge had not given sufficient weight to his grounds of appeal in the substantive appeal; and
·the refusal of the stay would preclude him, and members of his family, from maintaining a “window” of opportunity to spend time with the child.
We inferred from the father’s submissions about a “window” of opportunity that this complaint extended to the child being allowed to travel overseas.
Appellate principles
This was an appeal against a discretionary judgment. The limits on appellant interference in respect of such judgments are well known.
In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-5:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Orders made by the trial judge
In order to understand the father’s complaint about his Honour’s refusal to stay the orders of 13 August 2008 it is necessary that we set out those orders. They are as follows:
(1)That all previous parenting orders are hereby discharged.
(2)That the mother […] (hereinafter referred to as “the mother”) be allocated sole parental responsibility for the child [S] born [in October 1993] (hereinafter referred to as “the child”) including the sole parental responsibility for obtaining overseas travel documents for the child, including a passport.
(3)That the child live with the mother.
(4)That the child spend no time with the father […] (hereinafter referred to as “the father”) unless the child expresses a wish to do so.
(5)That within 28 days of the making of these orders the father do all necessary and required things of him and sign all documents and consents required of him to enable the mother and/or the child to:
(i)Obtain a passport or visas for the child [S] to allow the said child to travel overseas.
(ii)To remove the child and/or his mother from any airport watch list.
(6)Should the father refuse or neglect to sign any document and/or give any consents reasonably required of him pursuant to Order 5 above then a registrar of the Family Court of Australia is hereby authorised pursuant to Section 106A of the Family Law Act 1975 (Cth) to do all acts and things necessary that should have been done by the father to give effect to these orders.
(7)All other applications are dismissed.
(8)That subject to Section 118 of the Family Law Act of 1975 (Cth), except for any appeal against these orders, both parties are restrained from the date of these orders from instituting any proceedings in any court exercising jurisdiction under the Family Law Act 1975 (Cth), without first obtaining the permission of a Judge of the Family Court of Australia sitting at the registry at Parramatta.
Amended Order Notation:
(9)That the father has confirmed to the Court that he will not sign the documents referred to in these orders and in those circumstances the mother need not further submit such documents to the father before seeking the Registrar of the Family Court to sign such documents pursuant to Section 106A of the Family Law Act 1975 (Cth).
The trial judge’s stay reasons
The trial Judge commenced his reasons for judgment by noting that orders which provided for contact with the child and the father had been in place for some time, but had not been implemented for some years. His Honour also referred to his orders permitting the mother “as she had done in the past” to remove the child from the jurisdiction for periods of time. His Honour recorded that the father had been declared a vexatious litigant pursuant to s 118 of the Act.
The trial Judge carefully considered each of the father’s grounds of appeal, and concluded the Notice of Appeal did not “disclose an identifiable ground of appeal”.
Dealing with specific grounds, his Honour considered the father’s complaint about the lack of an interpreter was without merit as :
·the father was able to equip himself (at least linguistically) in English; and
·the only occasion the father had not had an interpreter was following the conclusion of the proceedings when judgment was delivered.
Referring to the remaining grounds of appeal, the trial Judge considered the following matters:
·the age of the child and
·the lack of contact between the father and the child (noting this was at the child’s choice) and that the child wanted nothing to do with the father.
Thus his Honour concluded it was inconceivable that an appeal court would change the decision of 13 August 2008.
Thereafter his Honour also dealt with the complaint that the trial had concluded in three days rather than the five days originally allocated and dismissed this complaint as having no merit.
The trial Judge also considered the father’s ground of appeal asserting he had had insufficient time to respond to submissions made by the ICL and explained “[h]e knew at all times what the position of the children’s lawyer was, namely, that there be no contact or time spent by the child’s son [sic], with the father, unless and on such conditions as the child [S] wished” (paragraph 6).
Thereafter his Honour dealt with the father’s assertion that the trial Judge had not given appropriate consideration to the transcript of earlier proceedings before Waddy J. The trial Judge referred to his assessment of lack of merit of this proposed ground as follows - “[t]he evidence before Waddy J, which was prejudicial to the father or potentially prejudicial was disregarded by this Court out of an abundance of caution to be fair to the father” (paragraph 7).
Having noted, correctly, that the principles which govern the granting of a stay involve the exercise of discretion, his Honour explained the primary consideration relevant to the exercise of his discretion was whether the refusal of the stay would render a successful appeal nugatory. His Honour concluded that the father was unable to address that issue, and went on to note that pursuant to the prior orders the father was not seeing the child thus reviving the earlier orders “would not mean that the father would see his son”.
Significantly, his Honour said “[t]he father thus will continue not to see his son until the appeal is heard, whether or not the stay is granted. Refusing a stay therefore cannot render nugatory the fruits of a successful appeal”. His Honour concluded his reasons by considering the mischief which could be caused by a stay, namely that the father would be likely to commence enforcement proceedings as he had done in the past.
applicable principles – stay application
In determining that the father’s stay appeal should be dismissed we had regard to the principles which the trial Judge was obliged to apply when determining such an application, and considered whether or not his Honour had correctly applied the relevant principles.
These principles, both in the general law and in respect of parenting proceedings, are well settled (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 at 230; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685. Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett and Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter included the following:
·the onus to establish a proper basis for the stay is on the applicant for the stay however it is not necessary for the applicant to demonstrate “special” or “exceptional” circumstances;
·a person who has obtained a judgment is entitled to the benefit of that judgment;
·the person who has obtained a judgment is entitled to presume the judgment is correct;
·the mere filing of an appeal is insufficient to ground a stay;
·the bona fides of the applicant;
·a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;
·a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant the stay;
·some preliminary assessment of the strength of the proposed appeal - whether the appellant has an arguable case;
·the desirability of limiting the frequency of any change in a child’s living arrangements;
·the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time; and
·the best interests of the child the subject of the proceedings.
Discussion
We have summarised the trial Judge’s examination of the father’s proposed grounds of appeal. We discerned no error by the trial Judge in his consideration of each of the father’s grounds of appeal, and concluded there was no error by the trial Judge in his assessment of the prospects of success of the appeal on the grounds contained in the Notice of Appeal, at least as they are presently drafted.
We considered it would have been unrealistic of the trial Judge not to take into account the views expressed by the child, which from our reading of the parenting judgment, was the predominant factor considered by the trial Judge in determining the child’s best interests.
Accordingly, we were satisfied that his Honour took into account the best interests of the child and appropriately gave significant weight to the child’s views. We discerned no error of discretion in his Honour’s conclusions that the granting of a stay pending appeal could have led to further contravention applications and was not likely to result, given the strength of the views of the child, in the child spending time with the father.
As we have earlier noted, the father did not, in his grounds of appeal, specifically raise a challenge to the trial Judge’s orders directed to facilitate practical arrangements for the mother to be able to travel overseas with the child. We did not have the benefit of the transcript before the trial Judge to consider whether the father raised any matters relevant to the necessity to stay these orders at the hearing of the stay application.
His Honour’s reasons for judgment do not disclose any consideration by him of the effect of the refusal to stay orders which had the practical effect of permitting the child to travel overseas (Orders 5, 6 and 9). We considered the omission constituted error by the trial Judge which warranted the re-exercise of discretion.
In re-exercising the discretion we took into account the mother did not appear and sent to the Court a facsimile transmission indicating that she was overseas. Counsel for the ICL submitted that it might well be that the child was also overseas, and that any orders of the Court which allowed the stay could cause emotional and psychological harm to the child on his return to Australia. We were unable to draw any conclusion from the mother’s correspondence.
The child, the subject of these proceedings, is aged 15 years. He was born in Australia and has lived in Australia the whole of his life although he has travelled overseas with the mother in 2001 and 2005. That travel was subject to the imposition of a bond. The mother has returned the child to Australia on each occasion of overseas travel. The child has expressed strong views that he does not wish to see the father.
In determining whether or not Orders 5, 6 and 9 of the trial Judge’s orders ought to have been stayed pending the hearing of the appeal we took into account the child’s residence in Australia throughout his lifetime, together with the fact that he has travelled overseas with the mother on two occasions and returned to Australia. Given the child is now in his mid teenage years, has not seen his father for some time, and expresses a strong view that he presently does not wish to spend time with him, we concluded there was little utility in allowing the appeal in part and staying Orders 5, 6 and 9 of the trial Judge’s orders.
Although it is arguable that the refusal to stay the orders theoretically could have rendered an appeal against those orders nugatory, that was not the reality. No ground of appeal was addressed to this issue, and whether the child was in China, or in Australia, he would not be spending time with the father pending the hearing of the appeal.
Although we found error by the trial Judge in his stay judgment in failing to consider whether the orders implementing overseas travel should be stayed, on the re-exercise of the discretion we came to the same result as the trial Judge, thus we determined the stay appeal should be dismissed.
The transcript
The husband sought that the Court provide the transcript of the proceedings before the trial Judge on 11 and 12 August 2008. In his affidavit in support of the application the father said he was seeking a grant of legal aid. Before us, he confirmed that his application for legal aid was unsuccessful. Although the father gave no details of his financial position or inability to afford transcript in his affidavit, we understood the basis of his application was that he asserts he is unable to afford to pay the cost of the two days’ transcript.
Counsel for the ICL initially gave his unqualified support to the father’s application for the provision of transcript. However, later in his submissions to us he submitted that while it may be of assistance to the Court hearing the appeal (rather than to the father) to have the benefit of transcript to deal with the appeal, he qualified his earlier submissions and said “if there are some minor issues in relation to procedural fairness that [the father] is focused upon” those issues were, in effect, overshadowed by the views expressed by the child, and the benefit to him of the cessation of litigation.
In a recent decision (Forbes & Bream [2008] FamCAFC 189) the Full Court of the Family Court reviewed the cases dealing with the provision of transcript by the Court to litigants and concluded that the Court could provide transcript to a litigant, but the circumstances in which it should do so were limited. At paragraph 36 of their reasons the Full Court (Bryant CJ, Boland & Stevenson JJ) said:
We do not need to define the circumstances in which the discretion may be exercised. Suffice it to say that we doubt whether it would be exercised in anything other [sic] exceptional cases. Furthermore, we consider that the vast majority of such cases will relate to parenting orders, where the necessity to arrive at a result in the best interests of the child may provide compelling reasons for transcript to be provided at the Court’s expense if the parties are impecunious.
In the course of our consideration of the stay appeal we carefully considered the trial Judge’s reasons for judgment in the parenting proceedings, as well as his Honour’s reasons for refusing the stay. We also had regard to the father’s proposed grounds of appeal. Our consideration of those matters was also relevant to our decision to refuse the orders sought by the father for the provision of transcript.
We were acutely conscious that the child the subject of these proceedings is a young person aged 15 years. There is no dispute that the child has expressed his views about his relationship with the father, and that he does not wish, at least at the present time, to spend time with the father. On our reading of the trial Judge’s parenting and stay judgments that factor was the predominant matter taken into consideration by his Honour in determining the child’s best interests. Although the father claims that the basis for the child’s views is the mother’s negative influence, nothing we were referred to supported a challenge to the trial Judge’s findings about the child’s views, or the consequences of those views.
In Forbes & Bream the Full Court explained that transcript is not routinely provided to parties as to do so would impinge on other necessary expenditure for the proper operation of the Court. Applications for the provision of transcript by the Court require a careful balancing exercise and the discretion to be applied in ordering transcript must take into account the particular circumstances of the case before the Court. Having regard to the trial Judge’s parenting judgment and the proposed grounds of appeal, in the circumstances of this case, we did not consider that this was an exceptional case where the best interests of the child required that the Court should provide transcript to the father.
Preparation of the appeal books
The father also sought before us that the Court prepare for him eight copies of the appeal book. The father submitted that because the appeal book index included a number of family reports and the transcript of three days of hearing before Waddy J in September 2007, that the Appeal Registrar should prepare the appeal books for him as extensive photocopying would be involved.
Rule 22.24 of the Family Law Rules provides that an appellant is responsible for the preparation of appeal books, but in exceptional circumstances, an order may be made that the appeal books be prepared by a respondent or the Appeal Registrar. Rule 22.24(2) and (3) provide as follows:
(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 people to prepare the appeal books:
(a) a respondent;
(b) the Appeal Registrar.
Note If the Appeal Registrar prepares the appeal books, the appellant or cross-appellant (if so ordered) is still responsible for obtaining the transcript (see rule 22.23).
(3) When making an order under subrule (2), the court may order the appellant to pay the costs of preparing the appeal books.
There was no suggestion before us that the father was unable to obtain, if he did not already have them, copies of the relevant documents, or to put together an appeal book. We took into account that he personally prepared his Notice of Appeal and other documents in these proceedings, including the appeal books for the stay appeal. The father offered no substantial reason to support his application to have the Court prepare the appeal books.
Further, before us, the father indicated that a number of items included in the appeal book index may not be necessary for the proper prosecution of his grounds of appeal thus reducing the size of the appeal book.
We also took into account that the father, the mother, and ICL, have pursuant to liberty granted in Order 10 of the orders made by the Appeal Registrar on 18 November 2008, the ability to re-list the matter before her regarding the appeal book index, or if the Appeal Registrar deems appropriate, to relist before a Judge of the Appeal Division. Thus the father may, if he is now of the view that some of the material previously included in the appeal book index is unnecessary, apply to the Appeal Registrar to amend the appeal book index. This would reduce the number of documents to be photocopied.
As we considered the father had failed to demonstrate any compelling reason to suggest this was an exceptional case we dismissed the father’s application.
Costs
At the conclusion of the proceedings before us counsel for the ICL made an application for costs. Having regard to the ongoing parenting appeal we considered it was more appropriate to reserve costs to be determined, together with other reserved costs involved in the appeals, at the conclusion of the parenting appeal.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date:
117
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