Warnett and Amerson - [2020] FamCAFC 24

FAMILY COURT OF AUSTRALIA

WARNETT & AMERSON

[2020] FamCAFC 24

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of the transcript – Where the father seeks an order that the Court provide the transcript of the proceedings before the primary judge at its own expense – Where the circumstances are not such that the interests of justice require the Court to provide the transcript – Where parts of the transcript are held by the Court and will be forwarded to the parties – Where the father does not have the means to purchase the rest of the transcript – Where the procedural orders for the preparation of the appeal will be amended so that the father will be permitted to provide such portions of the transcript as he can obtain – Application dismissed.

Sampson & Hartnett (2013) FLC 93-542; [2010] FamCAFC 220
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

APPLICANT:

Mr Warnett

RESPONDENT:

Ms Amerson

INDEPENDENT CHILDREN’S LAWYER:

Lukes Law

FILE NUMBER:

WOC

427

2017

APPEAL NUMBER:

116

2019

DATE DELIVERED:

7 February 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

30 January 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

27 September 2019

LOWER COURT MNC:

[2019] FamCA 499

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cohen with Ms Murphy

THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

Rossi Simicic Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Lukes Law

Orders

The parties be provided with the parts of the transcript held by the Court, namely, the transcript of the proceedings before the primary judge on 22 March 2019 and 28 May 2019.
The Application in an Appeal filed on 5 December 2019 be otherwise dismissed.
Order 1.27 of the procedural orders made on 12 December 2019 be amended so as to include the words “or such portions of the transcript as the appellant can obtain” after the words “and 28 May 2019”.
The appellant file and serve an Amended Notice of Appeal within seven days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Warnett & Amerson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
SYDNEY

Appeal Number: EA 116 of 2019
File Number: WOC 427 of 2017

Mr Warnett

Applicant

And

Ms Amerson

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Mr Warnett (“the father”) has appealed against final parenting orders made on 27 September 2019 by a judge of the Family Court of Australia in proceedings between him and Ms Amerson (“the mother”). The father now seeks an order that the Court provide, at its expense, a copy of the transcript of the hearing before the primary judge to facilitate the prosecution of his appeal.
The proceedings before the primary judge concerned the parties’ daughter who is nearly nine years of age. The primary judge found that the father posed an unacceptable risk of harm to the child and, accordingly, made orders that the child live with the mother who was to have sole parental responsibility for her and spend limited time with the father. The child’s time with the father was to be supervised until she commences Year 8 in 2024.
These orders disappointed the father who had sought orders for the child to spend unsupervised overnight time with him which eventually would include every second weekend. The appeal, thus, involves issues of significance.
An immediate difficulty with the orders now sought by the father in relation to the transcript is that the Court is not funded to provide transcripts to litigants. In this case, however, the primary judge obtained the transcript of the proceedings on 22 March 2019 and 28 May 2019, which can be given to the parties. These parts of the transcript which are held by the Court include the cross-examination of the single expert and the closing submissions of each of the parties.
As to the rest of the transcript of the proceedings before the primary judge, the Court will consider providing it if the interests of justice so require.
In Sampson & Hartnett (2013) FLC 93-542 at 87,170, the Full Court of the Family Court of Australia set out a list of factors that it considered relevant to such an application. They were:
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 Court is more likely to provide the transcript in a parenting case, but even so, careful consideration of the grounds of appeal is required (Sampson & Hartnett (2013) FLC 93-542 at 87,171).
The estimated cost of the complete transcript of the proceedings before the primary judge is $9,500. The evidence satisfies me that the father does not have the means to purchase it.
The father had two counsel appear for him on this application. However, as they both informed the Court that they would not be charging the father at any time in relation to this application, nothing can be drawn from their engagement.
I turn now to the grounds of appeal. The grounds of appeal outlined in the Notice of Appeal filed on 25 October 2019 are not consecutively numbered and many numbers are repeated. During the hearing of this application, counsel for the father handed up a properly numbered version of the Notice of Appeal but the defects should be cured formally. The father will be ordered to file and serve an Amended Notice of Appeal within seven days correcting that defect.
Grounds 5 and 5 (there are two) deal with the weight that was given to the single expert’s evidence. Similarly, Ground 9 (the second Ground 9) seems to be based on the single expert’s evidence. As all the single expert’s evidence will be available to the father from the parts of the transcript held by the Court, these grounds of appeal should be able to be adequately advanced, even if the rest of the transcript is not provided.
Grounds 2, 3 (the first Ground 3), 4 (both the first and second Ground 4), 6, 7, 8, 9 (the third and fourth Ground 9) and 13 (the first Ground 13) appear only to relate to his Honour’s reasons or the weight given to the evidence. It follows that the father’s arguments would not be greatly fettered by the lack of a complete transcript of the proceedings.
Grounds 10 and 12 (the second Ground 12) relate only to evidence that will be in the appeal book or was an exhibit.
I am prepared to assume that the remaining grounds of appeal will be difficult to argue in the absence of a complete transcript of the proceedings.
The last ground of appeal (the second Ground 13) asserts a reasonable apprehension of bias as to “the manner in which [h]is Honour conducted the hearing” and “the manner [h]is Honour has dealt with the factual allegations”. The transcript of the proceedings will not be needed as to the latter.
Counsel for the father informs me that no application was made during the hearing for the primary judge to disqualify himself. At the time of the hearing before the primary judge, the father was represented by counsel. The failure to make a timely application of this kind usually leads to a finding that the parties’ right to seek disqualification has been waived (Vakauta v Kelly (1989) 167 CLR 568). Consequently, although the transcript of the proceedings will be necessary for the father to pursue this ground of appeal, there are obvious difficulties with it.
I am prepared to assume, however, that the father’s appeal has reasonable prospects of success but clearly there are some difficulties with some of the grounds of appeal which are expressed too broadly or raise errors which are unlikely to be found to be material to the outcome.
In the course of oral submissions at the hearing of this application, counsel for the father indicated that it was likely that a substantially amended Notice of Appeal would be filed. Counsel for the father submitted that he could not give an indication of the likely amendments because any further grounds of appeal could only be determined after perusal of the transcript of the proceedings.
It is, of course, a legitimate use of the transcript to refine existing grounds of appeal or to identify new ones. The suggestion, however, that perusal of the transcript will lead to a substantially amended Notice of Appeal indicates a search for appealable points, rather than seeking to argue what are said to be obvious errors in the reasons for judgment. I note in that regard that one of the two counsel who appeared for the father on this application was the father’s counsel throughout the hearing before the primary judge and should have a good apprehension of what are said to be the errors made by the primary judge. Also, the issue of a significantly different Notice of Appeal was not raised before the Appeal Registrar at the procedural hearing.
However, I accept that the lack of a complete transcript may make it difficult, if not impossible, for all the grounds of appeal to be argued or argued fully, which will be to the detriment of the father.
The father submitted that this was an exceptional case that justified the Court providing the transcript because:
·The single expert did not accept that sexual abuse had occurred;
·The primary judge did not identify the future risk of harm to the child;
·The orders for the child to spend limited supervised time with the father will destroy their relationship; and
·The father has been made the scapegoat for the child’s troubling behaviour.
I do not accept that the last three points identify obvious errors in his Honour’s reasons for judgment. Clearly, the primary judge found that there was an unacceptable risk of sexual abuse of the nature described by the child (at [206]–[208]) and that even if that was not the case, unsupervised time would carry the risk of future disclosures by the child resulting in further interviews and investigations which would not be in the child’s best interests (at [209]–[210]).
Further, the primary judge devised the orders so as to preserve, as best as could be done, the meaningful relationship between the child and the father.
Whether there is error in the approach of his Honour as to these points will be a matter for the appeal. I simply observe that these points are not as overwhelmingly obvious as the father would have it.
Taking all these matters into account, I am not satisfied that this is a case where the interests of justice require the Court to provide the transcript to the father at its own expense. The application will, therefore, be dismissed.
I will, however, direct the Court to forward to the parties those parts of the transcript held by the Court.
I will also amend Order 1.27 of the procedural orders made on 12 December 2019 so as to include the words “or such portions of the transcript as the appellant can obtain”. The appeal will, thus, be able to proceed if not all of the transcript is available.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 7 February 2020.

Associate:

Date: 7 February 2020