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FATHER ASKS THE COURT TO PROVIDE TRANSCRIPTS OF THE PROCEEDINGS BEFORE THE PRIMARY JUDGE AT THE COURT’S EXPENSE

WARNETT & AMERSON

FAMILY COURT OF AUSTRALIA

[2020] FamCAFC 24

 

The case is about a father who sought an order that the Court provide the transcript of the proceedings before the primary judge at its own expense.

Facts:

Mr. Warnett (father and applicant) and Ms. Amerson (mother and respondent) are the parties in a proceeding concerning their 9-year-old daughter (child).  The primary judge in the said proceeding made a final parenting order, which the father has appealed against, that provided for the child to live with the mother and spend limited time with the father.  The father then sought an order for the Court to provide, at its expense, a copy of the transcript of the hearing before the primary judge to facilitate the prosecution of his appeal.   The Court is not funded to provide transcripts to the litigants.  However, the primary judge obtained and gave the transcripts of the cross-examination of the single expert and the closing submissions of each of the parties to the litigants.   The Court will consider providing the rest of the transcript of the proceedings before the primary judge if the interests of justice so require.

Issue:

Should the application for an order to provide a copy of the transcripts of the hearing at the Court's expense be granted?

Held:

The Court is not satisfied that this is a case where the interests of justice require the Court to provide the transcript to the father at its own expense.

The Court considered some relevant factors set out by the Full Court of the Family Court of Australia in the Sampson & Harnett[1] case that are relevant to the application filed by the father. 

  1. Whether the case is a financial or parenting case;
  2. Whether the whole transcript or part thereof is necessary for the determination of the appeal or part of the appeal;
  3. The likely cost of the relevant transcript and whether the applicant can afford all or part of the cost of the transcript;
  4. 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);
  5. The prima facie merits of the appeal;
  6. Whether the question of providing a transcript can be left to the Full Court hearing the appeal; and
  7. Any other relevant facts or circumstances.

The Court is more likely to provide the transcript in a parenting case, but even so, careful consideration of the grounds of appeal is required.[2]   Further, the estimated cost of the complete transcript of the proceedings before the primary judge is $9,500, and the Court is satisfied that the father does not have the means to purchase it.  Moreover, the father had two counsel appear for him on this application. However, as they both informed the Court that they would not be charging the father at any time concerning this application, nothing can be drawn from their engagement.  Additionally, the lack of a complete transcript of the proceedings would not significantly fetter most of the grounds in the father's appeals.  The grounds that dealt with the weight given to the single expert's evidence would be able to advance with the transcript provided by the Court.

Also, the father submitted that this was an exceptional case that justified the Court providing the transcript because a. single expert did not accept that sexual abuse had occurred, b. the primary judge did not identify the future risk of harm to the child, c. the orders for the child to spend limited supervised time with the father will destroy their relationship, and d. the father has been made the scapegoat for the child's troubling behavior.

The primary judge found that there was an unacceptable risk of sexual abuse of the nature described by the child and that even if that were not the case, unsupervised time would carry the risk of future disclosures by the child resulting in further interviews and investigations which would not be in the child's best interests.  Further, the primary judge devised the orders to preserve, as best as could be done, the meaningful relationship between the child and the father.

Given the above premise, the Court denied the application filed by the father.  However, the father was permitted to provide such portions of the transcript as he can obtain. 

The Court is more likely to provide the transcript in a parenting case, but even so, careful consideration of the grounds of appeal is required.[3]  In this case, the Court found that the most of the grounds of the father’s appeal are not affected by the lack of transcripts of the proceeding.  Further, the father’s reasons why providing the transcripts is justified are not compelling since the primary judge found that there was an unacceptable risk of sexual abuse and the orders made by the primary judge to preserve the meaningful relationship between the child and the father.  

 

[1] Sampson & Hartnett (2013) FLC 93-542 at 87,171).

[2] Ibid.

[3] Ibid.

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