Appellant Disputes Final Parenting Orders
Barlow & Sellers (No 2) [2022] FedCFamC1A 62 (12 May 2022)
Parenting orders were made for the respondent to have sole parental responsibility for the applicant and the respondent's children.
The appellant seeks for the Court to purchase the transcript for the purpose of her appeal. The Court, in determining whether to grant the appeal, assessed if there is an exceptional circumstance to justify the Court funding the provision of transcript.
Facts:
The applicant and the respondent have two children who were born in 2010 and 2012.
On 20 December 2021, a judge of the Federal Circuit and Family Court of Australia (Division 1) ordered that the children live with the respondent who was to have sole parental responsibility for them. The children are not to spend any time with the applicant, save for some limited and prescribed Skype communications.
The applicant filed a Second Further Notice of Appeal on 8 March 2022 and on 7 March 2022, amongst a number of other orders, an appeal registrar directed the applicant to file a consolidated digital transcript on or before 12 April 2022. The applicant submitted that the Court should obtain the transcript on her behalf because she had been advised that it was the “usual appeal custom and process” and because the Court prepared the electronic Appeal Book on behalf of the applicant, it is therefore also obliged to provide the transcript.
Grounds 1 and 2, contend that the primary judge made findings on important issues not supported by the evidence, and that her Honour failed to consider all of the evidence. Ground 4 alleges that the primary judge denied procedural fairness to the applicant by preventing her from questioning expert witnesses using evidence relied upon from the files of the Department of Child Protection and by refusing to permit the applicant from presenting documents to an expert witness for questioning. Ground 5, asserts bias and an unfair refusal of a motion to dismiss a Family Assessment.
Issue:
Whether or not the appeal should be granted.
Applicable law:
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.19(4) - requires the appellant to obtain the transcript of the hearing relevant to the appeal, regardless of who prepares the Appeal Book.
Forbes v Bream (2008) 222 FLR 96; [2008] FamCAFC 189 - provides that the Court can provide the transcript if the interests of justice require it; but normally, that would only occur in exceptional circumstances.
Analysis:
The Court is not funded to provide the transcript for appellants, however it is clear from a number of authorities that the Court can provide the transcript if the interests of justice require it; but normally, that would only occur in exceptional circumstances. The applicant did not give any information as to her financial position or the costs of obtaining the transcript. The only material before the Court are the primary judge’s reasons and the Second Further Amended Notice of Appeal. The grounds of appeal do not identify the findings on important issues which are said not to be supported by the evidence.
Whilst the outcome may not be that for which the applicant contended, there are likely to be some difficulties facing her in successfully submitting that these matters were not considered. There is no reference in the primary judge’s reasons to any application that she disqualify herself from the proceedings.
Conclusion:
The Application in an Appeal filed on 12 April 2022 is dismissed. Orders 2, 3 and 4 made by the appeal registrar on 7 March 2022 are discharged. Any requirement under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) for the appellant to file in the appeal, a transcript of the proceedings before the primary judge, is dispensed with.