Father Seeks Provision of Transcript
Whiteoaks & Marton [2022] FedCFamC1A 33 (7 March 2022)
The primary judge made orders granting the respondent mother sole parental responsibility for the child and enabled the mother to move with the child from City B to live in another region of Victoria as opposed by the appellant. The appellant seeks either provision of transcript by the Court or relief from the obligation to obtain it. The Court, in determining whether it should bear the expense of procuring the transcript, considered the impecuniosity of the appellant.
Facts:
On 30 November 2021, a judge of the Federal Circuit and Family Court of Australia (Division 2), made orders granting the respondent mother sole parental responsibility for the child and enabled the mother to move with the child from City B to live in another region of Victoria, which the appellant father had opposed. Other orders made provision for the child to spend time with the father on alternate weekends in school terms, during school holidays, and on other special occasions. The orders also specifically regulate the manner in which the child may be exchanged between the parties, with which orders the father also disagrees. On 23 February 2022, the father filed an Application in an Appeal seeking an order for the court to provide transcript or dispense requirement due to financial hardship.
The father filed an affidavit in which he deposed to the anticipated cost of the trial transcript being $2,945, his poor financial circumstances, and the asserted merit of his appeal. The grounds of appeal pleaded in the Notice of Appeal filed on 29 December 2021 comprise complaints about the adjournment of the trial from late July 2021 until early September 2021; the Court’s receipt into evidence of the mother’s affidavit filed in July 2021, even though filed and served slightly later than the procedural orders required; the appealed orders “effectively putting 3 lives in DANGER”; the appealed orders being “practically unworkable” for the father; the Court “sabotaging” the child’s meaningful relationship with the father by making an order which forfeits the child’s visit with him if he is more than 30 minutes late to the changeover; and the Court’s disregard of the father’s “notice of risks”.
The trial was adjourned for about six weeks because the mother was not initially legally represented and so, being the beneficiary of a State family violence order made against the father for her protection in March 2021, cross-examination was precluded by s 102NA of the Act. The adjournment allowed the mother to secure legal representation under the Legal Aid scheme for the trial, which then proceeded not long afterwards. The adjournment appears to have been an entirely rational procedural decision. While the mother filed her affidavit later than required, on 21 July 2021, it was still in the hands of the father and his lawyers over six weeks in advance of the trial.
Issue:
Whether or not the Court should grant the father provision of transcript by the Court or relief from the obligation to obtain it.
Applicable law:
(a) a party (the examining party ) intends to cross-examine another party (the witness party ); and
(i) either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
Analysis:
The father is impecunious. He is an apprentice tradesman on modest wages, which barely exceed his reasonable weekly expenses. He received a grant of legal aid for the trial before the primary judge. However, the father’s penury must be counter-balanced with the lack of ostensible merit in the appeal.
The father’s private views about the appealed orders putting lives in danger, being impracticable, and sabotaging the child’s relationship with him are not characteristic of recognised grounds of appeal which lie from a discretionary judgment. As for the complaint about the primary judge’s disregard of his “notice of risks”, it was the father’s case that the child should continue to live with the mother, albeit in closer proximity to him. He would not have applied for the child to continue living with the mother if he truly believes she poses risks of harm to the child. The apparent weakness of the father’s grounds of appeal militate against any finding that the interests of justice demand the Court should bear the expense of procuring the transcript for the appeal.
However, he should not be forced to obtain a transcript he cannot afford and thereby risk the deemed abandonment of his entire appeal because he cannot obtain and file the transcript. It does not appear that the transcript is critical to the disposition of the grounds of appeal but, if it is, the father will need to bear the consequences of any difficulty which then arises in his vindication of any grounds of appeal without the aid of transcript.
Conclusion:
The Court discharged orders 2, 3 and 4 made by the Appeal Registrar on 8 February 2022. The requirement for the appellant to file transcript in the appeal is dispensed with. Otherwise, the Application in an Appeal filed on 23 February 2022 is dismissed.
