Applicant Appeals Refusal to Include Documents in Appeal Book
Fierro & Fierro (No 3) [2022] FedCFamC1A 175 (26 October 2022)
The applicant seeks a review of the appeal judicial registrar’s refusal to include certain documents in the appeal book. The Court, in determining whether the application should be granted, assessed the relevance of documents.
Facts
On 21 May 2021 final consent orders were made between the applicant and the first and second respondent.
Those orders provided for the child to live with the first and second respondents, but that no communication occurred, or time be spent, between the child and the applicant unless the child initiates the contact.
On 20 October 2021, the applicant filed an Initiating Application seeking to vary those orders, with the last iteration of that application seeking that he be able to spend time with the child at his discretion, and that the child be removed from the care of the first respondent. The matter came before the primary judge on 19 August 2022 for the discrete hearing of whether it was in the child’s best interests to permit further litigation in relation to her, as advanced in the applicant’s Initiating Application. On 13 September 2022 his Honour dismissed the applicant’s Initiating Application.
At the hearing of the application, the applicant orally advanced an application that the Court should obtain the transcript at its expense. The applicant’s Amended Application in an Appeal filed 18 October 2022 seeks a review of an appeal judicial registrar’s refusal to include certain documents in the appeal book. The applicant seeks to include a number of documents in the appeal book which he says were before the primary judge. On the material filed in support of the application, it is simply not possible to determine whether they were, or were not, properly before the primary judge.
Issue
Whether or not the court should dispense with the transcript.
Applicable law
Analysis
The applicant says that transcript “is unnecessary to determine the issues” raised by his appeal (applicant’s affidavit filed 4 October 2022, paragraph 2). However that is far from clear, in large part because what the applicant contends in the appeal is opaque. The alleged breach of procedural fairness and natural justice, and the contended “bias and/or apprehended bias” may well pertain to events at the hearing, and hence a transcript would be required. The applicant contends that “the court below failed to consider the two affidavits in support (Affidavits of 22 July 2022 and 11 April 2022) which comprised my entire case as referred to at par [1] of my submission to the court below of 17 Aug 2022” (applicant’s affidavit filed 4 October 2022, paragraph 2).
It is unclear on what basis the applicant says these affidavits were not considered by the primary judge, although it is true they are not expressly referred to in his Honour’s reasons. It is quite possible that the transcript would shed some light on this question. The applicant is in receipt of social security benefits and asserts he suffers from “a debilitating medical condition”. Inferentially he might be claiming that he cannot afford transcript, said to be at a likely cost of $1,100 but there is no evidence directly to that effect.
Conclusion
No later than 4.00 pm on 9 November 2022 the applicant is to make file and serve a contentious appeal book limited to copies of the documents comprising:
(a) Exhibits ...1 and ...86 to the applicant’s affidavit of 11 April 2022;
(b) Exhibit ...1 to the applicant’s affidavit of 27 July 2022;
(c) Tender Bundle Exhibits: ...1; ...1; ...1; ICL1; ...1; ...1; ...1 and ...1;
(d) Affidavit of the first respondent filed 1 September 2020; and
(e) Affidavit of the second respondent filed 8 April 2021.
Otherwise the applicant’s Application in an Appeal filed 3 October 2022 and Amended Application in an Appeal filed 18 October 2022 will be dismissed.
