Whiting & Secretary, Department of Families, Fairness and Housing

[2024] FedCFamC1A 186

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Whiting & Secretary, Department of Families, Fairness and Housing [2024] FedCFamC1A 186

Appeal from:

Secretary, Department of Families Fairness and Housing & Whiting [2024] FedCFamC1F 479

Appeal number:

NAA 226 of 2024

File number:

MLC 2577 of 2024

Judgment of:

AUSTIN J

Date of judgment:

16 October 2024

Catchwords:

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of transcript – Where the appellant seeks relief from the financial obligation to procure the transcript of the primary hearing and that the Court procure the transcript at its expense – Where the evidence of the appellant establishes she cannot afford the transcript – Where the grounds of appeal do not appear to warrant advertence to the transcript – Where the submission by the appellant that the prosecution of her appeal would be prejudiced without the transcript is rejected – Order made relieving the appellant of the obligation to file and serve the transcript – Application otherwise dismissed.

Legislation:

Family Law (Child Abduction Convention) Regulations 1986 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.19, 13.22

Cases cited:

Peake & Cousins (No 2) [2019] FamCAFC 95

Number of paragraphs:

13

Date of hearing:

16 October 2024

Place:

Newcastle (via Microsoft Teams)

Counsel for the Appellant:

Mr Ratnayake

Solicitor for the Appellant:

TFA Legal

Counsel for the Respondent:

Ms Kanapathy

Solicitor for the Respondent:

State Central Authority Secretary to the Department of Families, Fairness and Housing

ORDERS

NAA 226 of 2024
MLC 2577 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS WHITING

Appellant

AND:

STATE CENTRAL AUTHORITY SECRETARY TO THE DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING

Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	16 OCTOBER 2024

THE COURT ORDERS THAT:

1.Orders 2 and 3 made by the appeal registrar on 7 October 2024 are discharged.

2.The operation of r 13.19(4) and r 13.22(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) is suspended.

3.The Application in an Appeal filed on 10 October 2024 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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Whiting & Secretary, Department of Families, Fairness and Housing has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. These reasons explain the disposition of an interlocutory application in the appeal brought by the appellant for two forms of relief: first, relief from the financial obligation usually borne by appellants to procure the transcript of the primary hearing (r 13.19(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)); and secondly, for the Court to procure the transcript of the primary hearing at its expense on the appellant’s behalf.

   Background

2. On 19 July 2024, the primary judge made orders under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) compelling the return of the appellant’s child to Belgium, subject to the fulfilment of certain conditions by the foreign father. That judgment followed a contested hearing between the appellant and the respondent State Central Authority shortly before on 8 July 2024.

3. On 24 September 2024, the appeal registrar granted the appellant an extension of time within which to appeal from the orders made on 19 July 2024. The Notice of Appeal was then filed on 26 September 2024 and the appeal has since been listed for hearing before the Full Court on 11 December 2024.

4. In the meantime, the primary judge stayed the operation of the appealed orders.

5. The appellant filed her interlocutory transcript application on 10 October 2024, which was then listed for hearing on 16 October 2024.

   Legal principles

6. The following principles summarised in Peake & Cousins (No 2) [2019] FamCAFC 95 are adopted and applied in this instance:

   17.Despite some past reservations about this Court’s power to order the provision of transcript for a party (WJD & TEK (1998) 72 ALJR 1323; Forbes & Bream (2008) 222 FLR 96 at [30]-[34]), the Court has proceeded on the basis that it will do so in exceptional cases (Forbes & Bream at [35]-[36]). The considerations which will influence whether such an order might be made in the exercise of discretion have been identified and include (see Sampson &Hartnett (Provision of [2010] FamCAFC 220 Transcript) (2013) FLC 93-542 at [16]):

   (a)       Whether the case is financial or child-related;

   (b)Whether the whole or only part of the transcript is integral to the appeal;

   (c)Whether the appellant can defray any party of the transcript cost;

   (d)The proportional cost of the transcript to the anticipated cost of the appeal;

   (e)The prima facie merit of the appeal; and

   (f)Whether the Full Court hearing the appeal should make the decision about transcript.

   Disposition

7. In support of her application, the appellant relies upon her affidavit filed on 10 October 2024, which demonstrates she is of limited means. She has investigated the cost of the transcript to be approximately $2,500, which amount she asserts she cannot afford. Accepting for the moment the appellant is unable to afford the transcript, that does not automatically mean it should be procured by the Court for her. As observed in Peake & Cousins (No 2), one salient consideration is whether the transcript is integral to the appeal. In this instance it is not, which factor is the most significant.

8. The hearing before the primary judge occupied one day. Neither the appellant nor the respondent cross-examined any witness and the hearing was confined to submissions (at [10]). The issue was whether the child was habitually resident in Belgium (at [12]). The respondent contended she was, whereas the appellant contended she had no place of habitual residence at all or it was alternatively the Netherlands (at [13]). On that issue, the primary judge recited the submissions made by each party (at [41], [43], [53], [54], [55], [57], [58], [62] and [66]) and found the child was habitually resident in Belgium (at [71]–[74]).

9. The eight grounds of appeal do not appear to warrant advertence to the transcript of the hearing.

10. The grounds contend for the erroneous application of the Regulations (Grounds 1–4) and the erroneous application of legal principle distilled by superior courts (Grounds 5–7), which complaints will either be established or not by reference to the unchallenged evidence in the appeal book and the reasons for judgment.

11. Otherwise, the appellant contends there have been “significant factual developments” since the appealed judgment (Ground 8), in relation to which proposition the transcript of the hearing could not be relevant.

12. I reject the appellant’s submission that the prosecution of her appeal would be prejudiced without the transcript.

13. The appellant’s application therefore succeeds in part. She is relieved of the obligation to file and serve the transcript if she cannot afford it, but the Court will not procure it for her. There are no exceptional circumstances to justify that outcome. She can prosecute the appeal without the transcript. For that reason, Orders 2 and 3 made by the registrar on 7 October 2024 are discharged and the operation of r 13.19(4) and r 13.22(2) of the Rules is suspended. The Application in an Appeal is otherwise dismissed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       16 October 2024