ZAU & UONG - [2014] FamCAFC 36

FAMILY COURT OF AUSTRALIA

ZAU & UONG

[2014] FamCAFC 36

FAMILY LAW – APPEAL – AMENDED APPLICATION IN AN APPEAL – where the applicant seeks to review the exercise of power by the Regional Appeals Registrar – where the applicant seeks that the court or the respondent provide the transcript of the hearing and prepare the appeal books – application dismissed.

FAMILY LAW – APPEAL – AMENDED APPLICATION IN AN APPEAL – COSTS – where the respondent seeks costs on an indemnity basis – where there are no exceptional circumstances – costs sought for the hearing on 7 November 2013 dismissed – costs ordered on a party/party basis for the hearings on 17 January 2014 and 27 and 28 February 2014.

Family Law Act 1975 (Cth) – s 96AA, s 117

Family Law Rules 2004 (Cth) – r 22.18

Forbes & Bream [2008] FamCAFC 189
Sampson & Hartnett (Provision of Transcript) [2010] FamCAFC 220

APPLICANT:

Ms Zau

RESPONDENT:

Mr Uong

FILE NUMBER:

MLC

3931

2012

APPEAL NUMBER:

SOA

2013

DATE DELIVERED:

28 February 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

EX TEMPORE JUDGMENT OF:

Strickland J

HEARING DATE:

27 & 28 February 2014

LOWER COURT JURISDICTION:

LOWER COURT JUDGMENT DATE:

Order of Southern Appeals Registrar

LOWER COURT MNC:

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Strum with Mr Peppin

SOLICITOR FOR THE RESPONDENT:

Kenna Teasdale Lawyers

Orders

The amended application in an appeal filed on 1 October 2013 be dismissed.
The date (8 November 2013) set out in paragraph 4 of the Orders made by Registrar Marrone on 16 July 2013 be varied to 11 July 2014.
The dates (13 December 2013 and 30 January 2014) set out in paragraph 5 of the Orders made by Registrar Marrone on 16 July 2013 be varied to 22 August 2014 and 3 October 2014.
The dates in paragraphs 1 and 3 of the notations to the said Orders be varied to

22 August 2014 (in lieu of 13 December 2013) and to the 3^rd sittings to take place in 2014 (in lieu of the 1^st sittings).
The application for costs made by the respondent in relation to the hearing on

7 November 2013 be dismissed.
The applicant pay the costs of the respondent of and incidental to the hearings on 17 January 2014 and 27 and 28 February 2014 on a party/party basis, such costs to be assessed in default of agreement.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 29 of 2013
File Number: MLC 3931 of 2012

Ms Zau

Applicant

And

Mr Uong

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

The application before the court is the amended application in an appeal filed by Ms Zau, the applicant,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ZAU & UONG

Details

AGLC: ZAU & UONG [2014] FamCAFC 36
Case: [2014] FamCAFC 36
Decision Date

CaseChat Overview and Summary

The matter of ZAU & UONG involved a dispute concerning the responsibility of obtaining transcripts in appeal cases within the Family Court of Australia. The court was tasked with determining whether there was a rule or legislative basis that mandated the court to provide transcripts, particularly in cases where the appellant or cross-appellant could not afford the costs. The central legal issue revolved around the interpretation of Rule 22.18 of the Family Law Rules 2004 (Cth) and whether it permitted or required the court to provide transcripts in exceptional circumstances.

In addressing the legal issues, the court examined Rule 22.18, which placed the responsibility of preparing appeal books and obtaining transcripts on the appellant or cross-appellant. The court noted that sub-rule (2) of Rule 22.18 allowed a judge or regional appeal registrar to order either a respondent or the registrar to prepare the appeal books if exceptional hardship was imposed on the appellant. However, the notation to sub-rule (2) explicitly stated that the appellant remained responsible for obtaining the transcript if the registrar prepared the appeal books. The court also referenced the Full Court's decision in Forbes & Bream, which underscored that there was no legislative basis within the Family Law Act 1975 (Cth) or the Family Law Rules 2004 (Cth) for the court to routinely provide transcripts. The court highlighted that providing transcripts was not a standard practice due to the costs involved and the need to prioritise other essential expenditures. Nevertheless, the court acknowledged its discretion to provide transcripts in exceptional cases where it was in the interests of justice, particularly in parenting cases where the best interests of the child were paramount.

Consequently, the court ruled that there was no specific rule mandating the court to provide transcripts, and the responsibility for obtaining transcripts lay with the appellant or cross-appellant. The court emphasized that while it had the discretion to provide transcripts in exceptional circumstances, such instances would be rare. The decision reaffirmed the principle that the court’s supervisory and incidental powers could be exercised to provide transcripts if necessary, but this would generally only occur in cases involving compelling reasons, such as the best interests of a child in parenting disputes.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In any event, the situation in relation to the court providing transcript is this; there is no specific rule in the Rules that provides for, for example, an application to be made for the transcript to be obtained by the court. However, rule 22.18 can be seen to bear upon this issue and says as follows:PREPARATION OF APPEAL BOOKS22.18(1) The appellant or, if so ordered, the cross-appellant is responsible for preparing and filing the appeal books, including arranging to obtain any transcript required to be included in the appeal books.22.18(2) If a Judge or Regional Appeal Registrar is satisfied that preparing the appeal books would impose exceptional hardship on the appellant, the Judge or Regional Appeal Registrar may order either of the following to prepare and file the appeal books:(a) a respondent;(b) the Regional Appeal Registrar.Note If the Regional Appeal Registrar prepares the appeal books, the appellant or cross-appellant (if so ordered) is still responsible for obtaining the transcript (see rule 22.27).22.18(3) When making an order under subrule (2), the court may order the appellant to pay the costs of preparing the appeal books. Importantly, the notation to sub-rule (2) provides that if the regional appeal registrar prepares the appeal books, the appellant is still responsible for obtaining the transcript. Thus to repeat, and it can be seen from rule 22.18, there is nothing specific in there as to, for example, the court providing transcript. And advisedly so, because of the situation of the court. Indeed I refer to what the Full Court said in Forbes & Bream [2008] FamCAFC 189, wherein the Full Court, as I am doing now, indicated that there is no legislative basis, not only within the Rules, but within the Family Law Act 1975 (Cth) (“the Act”), providing that a transcript be obtained by the court. At [28], [35] and [36] the Full Court said this:28.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. Thus in hearings of matters at first instance parties will be responsible for the cost of transcript if they wish to obtain it. However, the Court has from time to time judiciously provided transcript to parties where it is demonstrably in the interests of justice to do so. A common example is the provision of transcript of the evidence of an expert witness in a parenting case.…35.If the interests of justice require it, and the appellant or cross-appellant or party seeking it cannot afford the cost of transcript, the Court may in the exercise of its discretion agree to provide the transcript of relevant parts to enable the appeal to proceed. In Fortnum & Fortnum (No 2) [2008] FamCAFC 73 Finn J described this as part of the “supervisory role of the Full Court”. We would add to her Honour’s explanation the “supervisory power of the Court” may necessarily, in a particular case, require the Court to have transcript to fulfil its statutory function under s 94(2) of the Family Law Act. Thus the Court hearing an appeal may order the provision of transcript as an exercise of its incidental powers. 36.We do not need to define the circumstances in which the discretion may be exercised. Suffice it to say that we doubt whether it would be exercised in anything other than exceptional cases. Furthermore, we consider that the vast majority of such cases will relate to parenting orders, where the necessity to arrive at a result in the best interests of the child may provide compelling reasons for transcript to be provided at the Court’s expense if the parties are impecunious.