WOLLEMAN & WOLLEMAN
[2018] FamCAFC 227
•20 November 2018
FAMILY COURT OF AUSTRALIA
| WOLLEMAN & WOLLEMAN | [2018] FamCAFC 227 |
| FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – The appellant seeks that the court provides the transcript of the trial – Where the court is not funded to obtain transcript for parties – Consideration of the factors in Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 – Application dismissed. |
| Family Law Act 1975 (Cth) |
| Forbes & Bream [2008] FamCAFC 189 |
| APPLICANT: | Ms Wolleman |
| RESPONDENT: INDEPENDENT CHILDREN’S LAWYER: | Mr Wolleman Ms Maitland Legal Aid NSW |
| FILE NUMBER: | NCC | 3375 | of | 2014 |
| APPEAL NUMBER: | EA | 58 | of | 2018 |
| DATE DELIVERED: | 20 November 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 20 November 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 August 2018 |
| LOWER COURT MNC: | [2018] FCCA 1000 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Maitland of Legal Aid NSW |
Orders
Application in an Appeal filed on 12 October 2018 seeking that the Court provide the trial transcript is dismissed.
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 Wolleman & Wolleman 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 58 of 2018
File Number: NCC 3375 of 2014
| Ms Wolleman |
Applicant
and
| Mr Wolleman |
Respondent
and
The Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
Ms Wolleman (“the mother”) appeals the final parenting orders made by Judge Terry on 23 March 2018. Honour ordered that Mr Wolleman (“the father”) have sole parental responsibility for the parties’ two children; that the children live with him and that she spend time with one of the children for two hours four times per year.
By an application in an appeal filed on 12 October 2018 the mother seeks an order that the court pay for a copy of the transcript of the final hearing heard before Judge Terry on 7 and 8 March 2018.
The mother contends that she cannot afford the cost associated with the provision of the transcript. The mother represents herself and has prepared the grounds of appeal, they appear to challenge the weight the primary judge gave to certain evidence or challenge the complexion her Honour put on that evidence.
There is no legislative basis, not only within the Rules, but within the Family Law Act 1975 (Cth) (“the Act”), which provides that a transcript be obtained by the court (see Forbes & Bream [2008] FamCAFC 189). At [28] in Forbes & Bream, the court said:
From the inception of the operation of the Family Court in 1976, transcript has not been routinely provided to parties. The cost is not provided for in the budget of the Court, and the cost of doing so routinely, would impinge on other necessary expenditure for the proper operation of the Court. …
That is not to say that in exceptional cases the court may provide a transcript if it was persuaded that it is necessary in the best interests of children and if the parties were impecunious.
In this case, the mother is on Centrelink benefits and I accept for these purposes that she is not able to fund the purchase of the transcript of the hearing before the primary judge.
However, there are no exceptional circumstances which would persuade the court to pay for the trial transcript.
That does not mean that the mother’s appeal cannot proceed although it may be that so far as her grounds rely on her pointing to particular evidence before the primary judge, she may not be able to make good those grounds.
The application will thus be dismissed.
I certify that the preceding nine (9) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 15 February 2018.
Associate:
Date: 20 November 2018
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