Whiteoaks & Marton

[2022] FedCFamC1A 33

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Whiteoaks & Marton [2022] FedCFamC1A 33

Appeal from:

Whiteoaks & Marton [2021] FedCFamC2F 471

Appeal number(s):

NAA 104 of 2021

File number(s):

MLC 3501 of 2018

Judgment of:

AUSTIN J

Date of judgment:

7 March 2022

Catchwords:

FAMILY LAW – APPEAL – Application in an Appeal – Provision of transcript – Where the appellant seeks either provision of transcript by the Court or relief from the obligation to obtain it – Where the appellant is impecunious – Where the apparent weakness of the appellant’s grounds of appeal militates against any finding that the interests of justice demand the Court should bear the expense of procuring the transcript – Where the appellant’s application succeeds in part – Where the appellant is relieved of the obligation to obtain the transcript – Orders made – Application otherwise dismissed.

Legislation:

Family Law Act 1975 (Cth) Pt VII, s 102NA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.19, 12.22

Cases cited:

Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220

Number of paragraphs:

14

Date of hearing:

7 March 2022

Place:

Newcastle (via video link)

The Appellant:

Litigant in person

The Respondent:

Litigant in person

ORDERS

NAA 104 of 2021
MLC 3501 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR WHITEOAKS

Appellant

AND:

MS MARTON

Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	7 MARCH 2022

THE COURT ORDERS THAT:

1.Orders 2, 3 and 4 made by the Appeal Registrar on 8 February 2022 are discharged.

2.The requirement for the appellant to file transcript in the appeal is dispensed with.

3.Otherwise, the Application in an Appeal filed on 23 February 2022 is 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).

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

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. This is an appeal from parenting orders made under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) on 30 November 2021 by a judge of the Federal Circuit and Family Court of Australia (Division 2).

2. The orders granted the respondent mother sole parental responsibility for the child and enabled the mother to move with the child from City B to live in another region of Victoria, which move the appellant father had opposed. Other orders made provision for the child to spend time with the father on alternate weekends in school terms, during school holidays, and on other special occasions. The orders also specifically regulate the manner in which the child may be exchanged between the parties, with which orders the father also disagrees.

3. In due course, the appeal will be listed for hearing before a single judge of the Federal Circuit and Family Court of Australia (Division 1) but, presently, an interlocutory application of the father warrants attention.

4. On 23 February 2022, the father filed an Application in an Appeal seeking an order in these terms:

   1.The court to provide transcript or dispense requirement due to financial hardship.

5. In support of the application, the father filed an affidavit in which he deposed to the anticipated cost of the trial transcript being $2,945, his poor financial circumstances, and the asserted merit of his appeal.

6. The obligation to provide transcript for the appeal falls to an appellant under rr 12.19(4) and 12.22(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Unless the interests of justice demand it, an appellant should neither be relieved of that obligation nor the financial burden of its acquisition shifted to the Court (Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 at [12]–[16]). The considerations which are liable to influence any decision about such relief have been enumerated to include these:

   (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); and

   (e)the prima facie merits of the appeal.

7. I accept the father is impecunious. He is an apprentice tradesman on modest wages, which barely exceed his reasonable weekly expenses. He received a grant of legal aid for the trial before the primary judge.

8. However, the father’s penury must be counter-balanced with the lack of ostensible merit in the appeal. The father seems to consider the appeal is meritorious, but that is not a view easily reached on any objective appraisal.

9. As presently drafted, the grounds of appeal pleaded in the Notice of Appeal filed on 29 December 2021 comprise complaints about:

   (a)the adjournment of the trial from late July 2021 until early September 2021;

   (b)the Court’s receipt into evidence of the mother’s affidavit filed in July 2021, even though filed and served slightly later than the procedural orders required;

   (c)the appealed orders “effectively putting 3 lives in DANGER”;

   (d)the appealed orders being “practically unworkable” for the father;

   (e)the Court “sabotaging” the child’s meaningful relationship with the father by making an order which forfeits the child’s visit with him if he is more than 30 minutes late to the changeover; and

   (f)the Court’s disregard of the father’s “notice of risks”.

10. The trial was adjourned for about six weeks because the mother was not initially legally represented and so, being the beneficiary of a State family violence order made against the father for her protection in March 2021, cross-examination was precluded by s 102NA of the Act. The adjournment allowed the mother to secure legal representation under the Legal Aid scheme for the trial, which then proceeded not long afterwards. The adjournment appears to have been an entirely rational procedural decision. While the mother filed her affidavit later than required, on 21 July 2021, it was still in the hands of the father and his lawyers over six weeks in advance of the trial so it will be difficult for the father to establish any denial of procedural fairness on that account.

11. The father’s private views about the appealed orders putting lives in danger, being impracticable, and sabotaging the child’s relationship with him are not characteristic of recognised grounds of appeal which lie from a discretionary judgment.

12. As for the complaint about the primary judge’s disregard of his “notice of risks”, it was the father’s case that the child should continue to live with the mother, albeit in closer proximity to him. Surely he would not have applied for the child to continue living with the mother if he truly believes she poses risks of harm to the child. It was not the father’s case that it was too unsafe for the child to live with the mother. The case essentially concerned how much time the child should spend with the father and whether the parties could share parental responsibility.

13. The apparent weakness of the father’s grounds of appeal militate against any finding that the interests of justice demand the Court should bear the expense of procuring the transcript for the appeal.

14. However, accepting the father has demonstrated he cannot afford the transcript, he is relieved of the obligation to obtain it. He should not be forced to obtain transcript he cannot afford and thereby risk the deemed abandonment of his entire appeal because he cannot obtain and file the transcript. His application therefore succeeds in part. It does not appear that the transcript is critical to the disposition of the grounds of appeal but, if it is, the father will need to bear the consequences of any difficulty which then arises in his vindication of any grounds of appeal without the aid of transcript.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       7 March 2022