YAU & LAC
[2019] FamCAFC 156
•18 September 2019
FAMILY COURT OF AUSTRALIA
| YAU & LAC | [2019] FamCAFC 156 |
| FAMILY LAW – APPEAL – TRANSCRIPT – Where the applicant seeks that the court provide the transcript relevant to her appeal at its own expense – Where the applicant has not satisfied this Court as to her financial circumstances and why she needs the transcript she seeks – Where the merits of the appeal are seriously in doubt given that it is difficult to discern from the applicant’s grounds of appeal what appealable errors are asserted – Where the application stands dismissed. FAMILY LAW – APPEAL – FURTHER EVIDENCE – Where the further evidence comprises matters that have occurred or arisen since the orders the subject of the appeal were made – Where it has not been demonstrated that receipt of the further evidence would reveal error by the trial judge or would have produced a different result if it had been available at trial – Where it is not apparent that the evidence is admissible and there is no doubt that it is controversial – Application dismissed. |
| Family Law Act 1975 (Cth) s 93A(2) |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189 Sampson & Hartnett(Provision of [2010] FamCAFC 220 Transcript) (2013) FLC 93-542; [2010] FamCAFC 220 |
| APPLICANT: | Ms Yau |
| RESPONDENT: | Mr Lac |
| FILE NUMBER: | MLC | 6445 | of | 2016 |
| APPEAL NUMBER: | SOA | 101 | of | 2018 |
| DATE DELIVERED: | 18 September 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 2 September 2019 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
Order made 2 September 2019
The Applications in an Appeal filed on 23 May 2019 and 7 June 2019 be dismissed.
Order 18 September 2019
If so advised, the applicant obtain the transcript of the hearing before the trial judge as set out in items 79 – 85 inclusive of the appeal index attached to the order of the Appeal Registrar made on 23 April 2019, and provide the same electronically to the Court and to the respondent on or before the close of business on Monday 4 November 2019.
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 Yau & Lac 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 DIVISION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 101 of 2018
File Number: MLC 6445 of 2016
| Ms Yau |
Applicant
And
| Mr Lac |
Respondent
REASONS FOR JUDGMENT
Introduction
On 2 September 2019 I heard the Applications in an Appeal filed respectively on 23 May 2019 (“the first application”) and 7 June 2019 (the second application”) by Ms Yau (“the applicant”).
On that day I ordered that both applications be dismissed, but because of time constraints I was unable to deliver my reasons for judgment, and I indicated that I would provide them as soon as I could. These are my reasons for judgment.
In the first application the applicant sought a number of orders, but the only one that was able to be pursued was an application that the court provide, at its own expense, the transcript of the hearing required for the purposes of the appeal filed by the applicant on 27 December 2018 against final parenting orders made by Judge Hartnett (as her Honour then was) on 21 December 2018.
There was also an affidavit in support of that application filed by the applicant on 23 May 2019.
In the second application the applicant sought an order that she have leave to adduce further evidence in the appeal. On 7 June 2019 the applicant filed an affidavit in support of that application.
Both applications were opposed by Mr Lac (“the respondent”).
The first application
On 23April 2019, the Appeal Registrar made orders to prepare the appeal for hearing, including an order that the applicant include in the appeal books, to be filed electronically, the transcript of the hearings before the trial judge on 1 and 2 February 2018, 10 and 11 September 2018, 31 October 2018, and 19 and 20 December 2018. However, despite being advised that it may affect her ability to put her case to the Full Court, the Appeal Registrar noted that the applicant only intended to file extracts of transcript. Indeed, in her draft appeal index filed on 23 January 2019, the applicant identified the following transcript as relevant to her appeal:
1. 20 December 2018, [applicant] closing statement
2. 20 December 2018, [respondent] closing statement
3. Cross-examination of [applicant]
4. Cross-examination of [respondent]
5.Cross-examination of [the applicant’s adult daughter from a previous relationship]
6. Cross-examination of [a friend of the applicant]
7. Cross-examination of school Principal …
8. Cross-examination of school counselor (sic) …
9. Cross-examination of family consultant …
10. Cross-examination of [the respondent’s wife]
When this application came before the court for the first time on 11 July 2019, I advised the applicant that the affidavit in support of the application was completely inadequate to enable this Court to consider her application. There was only one paragraph that was relevant, and that read as follows:
1.My only income is from Centrelink’s Newstart allowance, amounting to only about 250 per week. The appeal requires eight days of transcriptions, estimated to cost $10,000. I really cannot afford this cost; however, without this evidence, the integrity and accuracy in the appeal proceedings will be compromised. In order to allow the Court of Appeal to obtain complete evidence and materials, I wish the court be provided with transcript at the court’s expense.
I indicated to the applicant that she needed to satisfy the court as to her financial circumstances, and specifically as to her alleged inability to provide the transcript that she says she requires, to better identify those parts of the transcript that she requires if she is not now seeking the entire transcript, and to explain why that transcript would be necessary for the purposes of the appeal.
In relation to her financial circumstances, I reminded the applicant of the finding by the trial judge at [15] of her reasons for judgment delivered on 21 December 2018, namely:
…The [applicant] gave evidence that she does not earn an income and is reliant on others to provide for her financially. This evidence was implausible and is not accepted by the Court.
In these circumstances the applicant sought an adjournment to provide that detail, which I granted, adjourning the application to 2 September 2019.
On 29 August 2019 the applicant filed a further affidavit in which she deposed as follows:
1.The estimated cost of the transcripts required for the Appeal is $3163.16. As I have very little income, solely from Centrelink’s Newstart Allowance, I cannot afford to purchase these transcripts without aid from the Honourable Court. I sincerely request that the Honourable Court provide for the full costs of these transcripts. Annexure “A” attached.
Confusingly, in Annexure “A” to that affidavit, the quotation from Auscript to provide the transcript was not for the entire transcript, nor for the transcript identified in the draft appeal index, but for the transcript of 8 and 9 November 2018, and 19 and 20 December 2018. That was curious, not the least because 8 and 9 November 2018 were not days on which the trial before her Honour took place. There was no hearing in this matter on 8 November, and on 9 November there was a brief hearing when interim orders were made. The applicant failed to explain why this was the transcript she sought.
As is plain, the applicant’s further affidavit was again inadequate, and failed to provide the detail that I raised with her on 11 July 2019.
This Court, of course, has a discretion to provide transcript to a litigant, but given that the court has no funding to do that, it can only do so in exceptional circumstances (Forbes & Bream (2008) 222 FLR 96 at [36]).
The factors that need to be taken into account in exercising that discretion include the nature of the proceedings, whether the transcript sought is integral to the appeal, the financial circumstances of the applicant, and the prima facie merits of the appeal (e.g. see Sampson & Hartnett(Provision of [2010] FamCAFC 220 Transcript) (2013) FLC 93-542 at [16]).
Here, I am not satisfied as to the financial circumstances of the applicant, and her alleged inability to obtain the transcript in any event. Further, there has been no explanation by the applicant as to the need for the transcript she seeks in the context of her appeal. And, as I have also explained to the applicant, because it is difficult to discern from her grounds of appeal what appealable errors are asserted, the merits of the appeal are seriously in doubt.
Thus, the application stands dismissed.
However, I indicated to the parties that I would vary the orders of the Appeal Registrar to allow the applicant time to obtain the transcript herself, if that is what she decides to do, and provide it electronically to the court and to the respondent. The applicant needs to be aware though, that if she does not obtain the entire transcript as identified in the appeal index attached to the orders of the Appeal Registrar, then she will not be able to advance any ground of appeal where reference to the transcript would be necessary in order for the court to determine, or consider, that ground of appeal.
The second application
Like the first application, this application initially came before the court on 11 July 2019. At that time I informed the applicant that the difficulty she had in pursuing the application was that the further evidence comprised matters that have occurred, or arisen, since the orders the subject of the appeal were made, and I was not satisfied that that evidence established error by the trial judge in making the orders that her Honour did. However, I also adjourned that application to 2 September 2019, to give the applicant an opportunity to consider her position in relation to this issue.
In the affidavit filed on 29 August 2019 the applicant deposes as follows:
2.I sincerely request the court to allow for further evidence to be adduced pertaining to family violence committed by [the respondent] against [the child] … This new evidence demonstrates that the final orders made were not within the child’s best interests as it exposed the child to further family violence, and the risks of such were extensively demonstrated by the evidence at the time of the final hearing. This new evidence additionally demonstrates the bias shown by Honourable Judge Hartnett towards the evidence presented at the hearing. On this basis, this new evidence is extremely important for the purposes of this appeal.
The principles relating to the receipt of further evidence pursuant to s 93A(2) of the Family Law Act 1975 (Cth) (“the Act”) are set out in the High Court decision of CDJ v VAJ (1998) 197 CLR 172. At [109] McHugh, Gummow and Callinan JJ said this:
…Its principal purpose is to give the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. …
And, at [111]:
…The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial.
In relation to evidence of matters arising subsequent to parenting orders the subject of an appeal, their Honours also opined that the preferred mode of procedure would be to bring a variation application based on those matters, rather than to resort to s 93A(2) of the Act.
Additionally, the receipt of such further evidence can only be considered if it is admissible, and uncontroversial. The Full Court is not set up to adjudicate on disputed evidence.
Here, it has not been demonstrated either that the receipt of the further evidence would reveal error by the trial judge, or that it would have produced a different result if it had been available at trial. Further, it is not apparent that the evidence is admissible, and there is no doubt that it is controversial.
For those reasons, the further evidence cannot be received.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 18 September 2019.
Associate:
Date: 18 September 2019
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