Trendor & Trendor
[2025] FedCFamC1A 57
•7 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Trendor & Trendor [2025] FedCFamC1A 57
Appeal from: Trendor & Trendor (No 2) [2024] FedCFamC1F 842 Appeal number(s): NAA 2 of 2025 File number(s): BRC 5389 of 2016 Judgment of: JARRETT J Date of judgment: 7 April 2025
Catchwords: FAMILY LAW – 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 – Appellant relieved of obligation to provide the transcript – Application otherwise dismissed. Legislation: Child Support (Assessment) Act 1989 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.22
Cases cited: Marsters & Radcliffe [2023] FedCFamC1A 231
Pallin & Deave [2024] FedCFamC1A 155
Peake & Cousins (No. 2) [2019] FamCAFC 95
Sampson & Hartnett (2013) FLC 93-542; [2010] FamCAFC 220
Number of paragraphs: 31 Date of hearing: 4 April 2025 Place: Heard in Brisbane (by audio link), delivered in Adelaide Counsel for the Appellant: Litigant in person Counsel for the Respondent: Litigant in person NAA 2 of 2025
BRC 5389 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR TRENDOR
Appellant
AND: MS TRENDOR
Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
7 APRIL 2025
THE COURT ORDERS THAT:
1.Orders 4 and 5 made on 5 February 2025 are discharged.
2.Order 6 made on 5 February 2025 is discharged and 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 shall proceed to hearing without a transcript.
3.The Application in an Appeal filed by the appellant on 21 March 2025 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
The appellant has appealed against final property adjustment orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 5 December 2024.
On 5 February 2025 the appellant was ordered to obtain an electronic transcript from the court’s authorised provider and file it on or before 4.30pm on Friday 21 March 2025: orders 4 and 5 of the orders made on 5 February 2025. As pointed out in order 6 of those orders, 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.
The appellant filed an Application in an Appeal on 21 March 2025 seeking the following:
The Applicant seeks under rules 13.19 to 14 to:
1. Be relieved of the obligation to pay for a transcript of the trial before [primary judge] that took place over 4 separate dates as ordered by Registrar Kane.
2. Acknowledgement that the Applicant is in financial distress and has been since 2017 made worse by the Respondent Induced garnishing of [primary judge’s] judgement.
3. Rectification of that financial distress.
Plainly orders 2 and 3 are a nonsense and deserve no further attention. They will be dismissed.
Order 1 might be viewed in different ways. One way might be to interpret it as an application for the Court to meet the costs of the transcript. Another way might be to view it as an application for an order that the provision of the transcript be dispensed with entirely. The appellant informed me that his preference was for the former but he accepted that if the court ordered the latter, his grounds of appeal that rely upon reference to the transcript of the trial for their resolution might be prejudiced. He informed me that he otherwise had sufficient evidence to make out his appeal.
The respondent opposes the application but has not filed a response to the Application in an Appeal. She filed an affidavit at 1.05am on the morning of the hearing of the application. I refused the respondent permission to rely upon that affidavit given its proximity to the hearing of the application.
The Court is not funded to provide transcripts for appeals. Austin J summarised the relevant principles in Peake & Cousins (No. 2) [2019] FamCAFC 95 at [17] and [20]. More recently, Riethmuller J 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.
It can be seen then that the court has a discretion to order the provision of a transcript, which discretion is to be exercised judicially taking into account the matters adumbrated in Sampson & Hartnett and any other consideration relevant to the specific case at hand. The discretion is unlikely to be exercised favourably in anything other than exceptional cases.
The nature of the case before the primary judge
The application before the primary judge that leads to the present appeal comprised an application for parenting orders and a property adjustment cause. The application was tried over seven days spread across 8 months. Final written submissions were received some five months after the last hearing day. At that time the parties’ child who was the subject of the parenting proceedings was17 years and 2 months of age. By the time the application came to judgment, he had turned 18 years of age. As a consequence, only the property cause remained for determination.
The appellant appeals the property adjustment orders. By those orders certain funds then present in the wife’s solicitor’s trust account were distributed between the parties. The parties otherwise retained all other property and superannuation interests then in their possession or to which they were legally entitled. The effect of the primary judge’s order was to divide the parties’ net property (found to be $1,349,912 inclusive of superannuation) 27.5% to the appellant and 72.5% to the respondent. The appellant’s entitlement was to be made up of his superannuation interests ($75,900) and a cash distribution from the funds held in the respondent’s solicitor’s trust account ($295,326).
The Appeal
Before dealing with the grounds of appeal, it is instructive to recount the relief that the appellant seeks in the appeal, which he articulates in his Notice of Appeal as follows:
1. The ‘Judgement’ of [primary judge] of 5 December 2024 be vacated in full.
2. The Court either grant leave for criminal proceedings to commence against the Wife or exercise discretion under the Family Law Acts to determine the offence of Kidnap and unlawful abduction based on admission of same by the Wife for no cause or legal reason.
3. The Court exercise discretion to ‘Stay’ and vacate all the ‘decisions’ of the Child Support Agency (“CSA”).
4. All property and chattels improperly garnished, without due process or Court Order, from the Father be returned or monetary equivalent be remitted to the Father by the CSA.
5. The proceeds of the sale of [S Street, Suburb L] be paid to the father without deductions by the CSA or whatsoever.
6. Subpoena’s sought by the Father and granted but barred from service be immediately served and the defence of sovereign immunity voided.
7. Indemnity costs and damages be awarded to the Husband.
It will be immediately apparent that this Court (sitting in its appellate jurisdiction or otherwise) has no jurisdiction to make the order numbered 2. Nor does it have power, at least in the context of the appeal, to make the orders sought in in orders 3 and 4 set out above. Whilst it was the case that the application before the primary judge did seek relief pursuant to the Child Support (Assessment) Act 1989 (orders 25 – 28 sought in the Amended Initiating Application filed on 25 June 2021), those paragraphs of his Amended Initiating Application were struck out on 10 March 2021. There is no appeal against that order.
Order 1 and order 5 might be related. Order 1, I am prepared to assume, seeks an order that the primary judge’s order be set aside. No alternative orders are sought – either by way of remitter and rehearing or the substitution of some other property adjustment order. In that respect, order 5 might be a suggestion of an alternative order, namely that the whole of the money that was held in the respondent’s solicitor’s trust account be paid to the appellant without deduction. Alternatively, it could be an order which is solely directed to the Child Support Registrar and is an attempt to prevent the Child Support Registrar from doing something in relation to those funds. The Child Support Registrar is not a party to these proceedings
Order 6 is a procedural order, the efficacy of which is simply not apparent. Presumably order 7 seeks the costs of the appeal, but the reference to “damages” is mysterious.
The grounds of appeal
The Notice of Appeal contains 16 putative grounds of appeal and some other unnumbered paragraphs asserting error on the primary judge’s part. The grounds are not logically organised and represent, it seems to me, a stream of consciousness rather than an attempt to identify and articulate error by the primary judge. It is difficult to understand how the following grounds of appeal have a bearing upon the appeal against the primary judge’s property adjustment order:
1.Failing to address the complaints of the Application in 2016, that is the admitted unlawful (Criminal Code 1899 s.363A) kidnap of 2 British children (under the age of 15) by the wife, made by the Applicant and delaying judgement for 10 years.
2.Denying the Father an ability to enforce previous Court Orders from 2016, all breached by the Wife, to have access to his British children.
…
4.Preventing Subpoena’s requested by the Father for the CSA (Family Law Acts, Australian Constitution) on the ground of ‘Sovereign Immunity’ of the CSA (International Convention). The Applicant remains, after 8 years, without information or legal justification to explain the acts of the CSA.
4.Disallowing, and not considering, evidence linking incomplete and biased financially focused emails from the Wife to the CSA and evidence of illegal ‘persuasion’ of the CSA by the Wife’s family (corruption, Unfair trial and process, UCPA).
5.Disallowing and not considering evidence linking coercion from the parents of the Wife to the CSA to act in an unlawful manner (International Conventions).
6.Disallowing an application to require the CSA to provide details of the legal basis for their actions in circumstances where the Australian Ombudsman confirmed there was no debt owed by the Father or debt served and where the Applicant was improperly arrested not ‘prevented from departure’ from a foreign country (Australian Constitution).
…
13.Allowing an admitted criminal, the Wife, to benefit from the proceeds of her crime (Constitution of Australia).
14.Failure to exercise judicial discretion to prevent the actions of the CSA despite indisputable evidence of malfeasance and ‘bad intent’ (Ombudsman Acts, International Conventions).
15.Dismissing, without reading, an ‘Application in a case’ In 2020 requesting child access for the fifth time (Unjust procedure, Constitution).
Acknowledging that I have not had the benefit of full argument in respect of these grounds of appeal, it is difficult to see how they will enjoy any prospect of success. I turn to the remaining grounds of appeal.
Before doing so it is necessary to observe that the appellant made no attempt to demonstrate by reference to his grounds of appeal, that a transcript of the hearing before the primary judge, either in full or in part, was necessary for him to prosecute his appeal.
Ground 3 assert that the trial was “unfair” by “disallowing subpoenas issued by the Father rendering the Father at a complete judicial disadvantage.” Ground 3 asserts that the primary judge prevented certain unspecified subpoenas “from being served”. These subpoenas apparently related to evidence of the respondent’s “real financial position and the behaviour of the Child Support Agency (CSA) whose illegal actions prevented the Father remaining in Australia”. Allied with this ground seems to be ground 16 which asserts that the primary judge unfairly disallowed “the Father access to his personal and financial records, kept/ taken solely by the Wife, in circumstances where access to the Father’s record without Court Order was refused (Unfair prejudice, UCPR and procedure)”.
These are assertions that the primary judge denied the appellant procedural fairness by rulings made at some point (just when is not clear) which prevented him from conducting the trial of the proceeding in the way in which he wished to conduct it. The real issue is the correctness of the procedural rulings, if any, about these matters made by the primary judge. I accept that it is conceivable that a transcript of the interactions between the parties and the primary judge about this issue would assist with determining this ground of appeal.
Ground 8 asserts that the primary judge erred by “Improperly denying English evidence on the basis it was ‘English’ (Racial Discrimination, UCPR).” This is a ground that is not dependent upon a transcript of the proceedings for determination. The question on the appeal will be simply whether the primary judge’s decision to exclude such evidence, if that is what occurred, was appropriate.
Ground 9 seems to refer to a procedural matter dealt with during the management of the case before trial. Although there is nothing before me that bears this out, it seems that the primary judge made an order that the fees payable to a single expert forensic accountant should be limited. The imposition of this limit seems to attract the argument that it was “improper”. How that is said to impact upon the order the subject of the appeal is not explained. Perhaps it is a complaint about procedural fairness. But whatever it is, it is difficult to see how any argument in respect of it would be advanced by reference to the transcript of the trial.
Ground 10 asserts “Judicial bias in the form of ignoring any and all rights of the Father despite unarguable documentary evidence to the contrary (International Conventions)”. This is not a proper assertion of appealable error by reason of either apprehended bias or actual bias. As the ground is articulated, a transcript is not likely to assist its advancement.
Grounds 11 and 12 seem to assert that the primary judge did not take into account relevant matters namely “the ‘contrived’ behaviour of the CSA whose actions were an ‘abuse of process’;” the “fact that the Father has had no Income or access to financial support since 2015 yet allowing the wife to receive substantial income and financial support” and “ignoring medical evidence (because the evidence was from [City J] not Australia) that the Father was unable to work due to proven medical issues (Racial Discrimination, International Conventions)”. A proper consideration of these grounds will require a comparison of the evidence (which, according to the grounds, appears to be documentary evidence) with the primary judge’s reasons. No transcript is necessary.
It is difficult to form a definitive view about the prospects of success of the grounds of appeal to which I have just referred. I can say that, despite their form, they are not unarguable but they appear at best weak.
During argument, the respondent pointed out that the primary judge had made an order that the parties be provided with a transcript of the evidence of the single expert accountant. However, the appellant did not think that provision of that part of the transcript alone was sufficient.
Of all of these grounds of appeal, it is perhaps only ground 3 that might depend upon reference to a transcript for its resolution. There is no identification of which part of the transcript deals with these issues raised in ground 3 of the Notice of Appeal. The provision of the whole transcript for seven hearing days appears entirely unnecessary.
Financial Circumstances and the costs of the transcript
The parties are not legally represented on the appeal. The cost of a transcript appears to be the most significant financial cost of the appeal for the parties. There is no evidence about the cost of the transcript, although I am prepared to assume that there will be some considerable cost involved in securing the whole transcript.
The appellant swears that he has no income, no assets and no liabilities. He says that he has fortnightly weekly expenses of $1,700. He annexes to his affidavit an application for exemption from fees – financial hardship that he filed when he filed his Notice of Appeal on 1 January 2025. In that document he says that he has “no assets nor income and have not had since 2015”. Despite that, there is no explanation in the applicant’s evidence about how he meets his fortnightly expenses and how he has done so since 2015. In argument he told me that his wife and sister sometimes give him money, but there is no evidence about that.
Other matters
No other matters appear to be relevant to the issue at hand.
Conclusions
The appellant does not establish that this is a case where the court should exercise the discretion to order the provision of a transcript, or part of a transcript to assist the resolution of the appeal. No exceptional circumstances are made out. The observations of Riethmuller J in Pallin & Deave [2024] FedCFamC1A 155 at [22] are apposite:
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.
Given the appellant’s claimed impecuniosity, which despite some reservations, I accept at face value, the appropriate course is to order that the provision of a transcript be dispensed with and the appellant be relieved of the deemed abandonment of his appeal. That will have a practical consequence for his appeal. He will necessarily be limited to arguments that do not rely upon references to the transcript.
Neither party was represented before me on this application. Costs of this Application in an Appeal therefore, are not in issue.
I make the orders set out at the commencement of these reasons.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 7 April 2025
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