Appellant Seeks Relief from Obligation to File Transcript

Fullmer & Omeros [2022] FedCFamC1A 6 (31 January 2022)

The appellant seeks relief from obligation to file a transcript on the basis that he is unemployed and cannot afford the cost.  The respondent opposed the application.  The appellant asserted oral evidence of witnesses was important to the prospects of the appeal’s success, but still pressed his application.  The Court, in determining whether or not to rule in favor of the applicant, relied upon the Family Law Act 1975 (Cth).

Facts:

The father appeals from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 5 November 2021 determining the Application-Contravention he brought against the respondent mother on 4 March 2021.  The Application-Contravention was intended to sanction the mother for multiple alleged contraventions, without reasonable excuse, of parenting orders previously made between the parties on 6 March 2019 in respect of their only child.  The Application initially comprised 27 counts but many counts were summarily dismissed or struck out by interlocutory orders and so only the first eight counts remained and were the subject of the hearing before the primary judge.  Her Honour dismissed the first six counts but sustained the seventh and eighth counts. 

In respect of the two proven counts, the primary judge thought it inexpedient to impose any sanction upon the respondent.  The enforcement dispute concerned two issues: first, the child’s failure to spend time with the father due to the parties’ disagreement over the location of the changeover venue; and secondly, the child’s failure to communicate electronically with the father on Sundays.  

The primary judge considered that, even though no sanction should fall upon the respondent, to avoid the prospect of further conflict over the operation of the substantive parenting orders, power should be exercised to amend the existing orders in so far as they purported to address those two contentious issues. 

The primary judge made orders for the child to instead communicate with the parties “at reasonable times” (Order 4); the variation of the former order related to the changeover venues to be more prescriptive (Order 5); and otherwise, the dismissal of the appellant’s Application-Contravention (Order 6). 

On 27 January 2022, the appellant filed an Application in an Appeal seeking relief from his obligation to file in the appeal the transcript from the proceedings below.  He adduced evidence via his affidavit filed on 27 January 2022 that he is unemployed and cannot afford the cost of any transcript, the cost of which he has investigated to be $2,534 for the two days of hearing before the primary judge. 

In the appellant's grounds of appeal, he alleged that the primary judge made a decision based on wrong principle; influenced by extraneous and irrelevant comments from the respondent, mistook the facts; failed to take into account some relevant evidences, declarations, matters; placed inappropriate weight on irrelevant observations against the [appellant]; and taken a decision based on wrong false accusations.

Issue:

Whether or not the appeal should be granted. 

Applicable law:

Family Law Act 1975 (Cth) s 70NBA - pursuant to which the power is exercised to amend the existing orders in so far as they purported to address those two contentious issues. 

Analysis:

If the appellant relies upon some aspect of the respondent’s oral evidence during the hearing before the primary judge to vindicate his arguments in the appeal about the respondent’s evidence being deliberately (or even inadvertently) false, then the task of succeeding with the appeal will be much more difficult without the transcript of her evidence.  

That is particularly so if he seeks to contrast her evidence given before the primary judge with her evidence given in other proceedings before other courts in 2018 and 2019, as the grounds of appeal tend to imply.  

Although the appellant asserted the oral evidence of all three witnesses was important to the prospects of his success with the appeal, he still pressed his application for relief from having to file the transcript in the appeal.  If the transcript really is important to the appeal, the appellant seemed not to understand how the success of his application would tend to thwart the appeal, despite best efforts to explain it to him.

The application must succeed on the evidence before the Court.  The appellant cannot be ordered to procure and file a transcript which the evidence shows he cannot afford, but the appellant must bear the consequences of his application.  If, conversely, the transcript is really of no value in the appeal then its absence will cause no harm.

Conclusion:

The Court discharged Orders 2, 3 and 4 made by the Appeal Registrar on 18 January 2022.  Any requirement under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) for the appellant to file in the appeal transcript of the proceedings before the primary judge on 20 and 24 August 2021 is dispensed with.