Court Rejects “Natural Justice” Argument but Lets Appellant Proceed Without Transcript

In Falvo & Melita (No 2) [2026] FedCFamC1A 108, Campton J dismissed two Applications in an Appeal brought by a self-represented appellant in a de facto relationship appeal. The appellant wanted the Court to fund five days of transcript from an eight-day trial, or alternatively dispense with transcript altogether. She also sought review of procedural orders made by an appeal judicial registrar, including removal of the registrar from the matter and adjournment of the appeal. The Court refused to fund the transcript, rejected the natural justice arguments, dismissed the review application, but made the practical order that the appellant did not have to provide the transcript and could still prosecute the appeal without it.

🧩 Facts and Issues

Facts:

The appellant appealed from a declaration made under s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed between her and the respondent from mid-2018 to early 2023. The underlying trial ran for eight days. The appellant was self-represented at trial and on appeal.

On 28 May 2026, an appeal judicial registrar made procedural orders preparing the appeal for hearing, including orders requiring the appellant to obtain and file electronic transcript. The appeal was listed before a Full Court on 29 July 2026.

The appellant then filed two Applications in an Appeal. The first sought that the Court supply five days of transcript at no cost, said to be required for procedural fairness, natural justice and due process. Alternatively, she asked that transcript be abandoned for the appeal. The second sought review of the appeal judicial registrar’s procedural orders, including removal of the registrar from the matter, adjournment of the appeal, and written confirmation about alleged constitutional/common law matters.

Issues:

1. Should the Court fund the transcript for the appellant?
2. Would refusal to fund transcript deny procedural fairness or natural justice?
3. Should the appellant be relieved from the obligation to provide transcript?
4. Did the appeal judicial registrar exceed her powers or act with bias?
5. Should the appeal timetable be adjourned or extended?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• Pt VIIIAB — de facto financial causes.
• s 90RD — declaration as to existence of de facto relationship.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

• r 13.19(4) — if transcript is ordered, the appellant is responsible for obtaining it.
• r 13.22 — if transcript is ordered but not provided, the appeal may be deemed abandoned.
• r 13.23 — parties must prepare summaries of argument and lists of authorities in accordance with the appeal rules.

📌 Precedents Relied On

• Smits & Jansen [2025] FedCFamC1A 164 — only in exceptional cases will an appellant be relieved of the usual burden of providing transcript and have transcript provided at Court expense.
• Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 — relevant factors include the nature of the proceedings, whether transcript is necessary, cost, proportionality, prima facie merits, whether the issue can be left to the Full Court, and other relevant circumstances.

🧠 Analysis

Issue

Was the appellant entitled to have the Court fund transcript or adjourn the appeal timetable, and did the procedural orders made by the appeal judicial registrar involve error, bias or denial of natural justice?

Rule

The ordinary rule is that an appellant must obtain the transcript if transcript has been ordered. Failure to do so may cause the appeal to be deemed abandoned. However, the Court may relieve an appellant of that obligation where appropriate.

Court-funded transcript is different. That is exceptional. The Court is not generally funded to provide transcripts to litigants who appeal. The applicant must show more than financial hardship or dissatisfaction with transcript cost. The Court considers whether transcript is actually necessary for the grounds of appeal, whether the cost is proportionate, whether the appeal has prima facie merit, and whether justice requires the Court to fund or dispense with transcript.

Procedural orders made to prepare an appeal for hearing do not require consent of all parties. An appeal judicial registrar has delegated procedural powers to manage the appeal efficiently. Bare allegations of bias, abuse of power or constitutional invalidity require evidentiary foundation.

Application

1. The appellant’s transcript request was rejected

The appellant asked the Court to supply five days of trial transcript at no cost. The estimated cost was between $9,101 and $9,965, which Campton J accepted was a significant sum.

However, the Court rejected the argument that refusal to provide transcript would amount to denial of procedural fairness, natural justice or due process. The appellant relied on broad assertions, including references to Magna Carta, historical statutes, open justice and Chapter III of the Constitution, but those references did not establish a legal entitlement to publicly funded transcript.

Campton J also noted that the applicant asserted financial hardship but gave no detailed particulars of her financial circumstances. The primary judge’s reasons indicated she owned real property and had previously received funds from the respondent, including funds connected with property adjustments, legal fees and other payments.

2. Transcript was useful, but not shown to be essential

The appeal concerned a declaration that a de facto relationship existed. It was not a parenting appeal, nor a case involving asserted immediate risk to a child or person’s safety.

Campton J examined the grounds of appeal. They alleged legal error, factual error, procedural fairness, apprehended bias, discretionary error, decision against the weight of evidence, and unsafe findings. The Court observed that many of the legal errors could be considered by comparing the primary judge’s reasons with the applicable legal principles and the appeal book.

The Court accepted transcript might assist with bias and procedural fairness complaints, but those complaints were opaque and lacked particularity. The Court also observed the appellant did not contend that she could not conduct the appeal without transcript.

That meant the Court was not satisfied this was an exceptional case requiring it to obtain and fund transcript.

3. The practical order: no Court-funded transcript, but no abandonment

Although the Court refused to fund transcript, Campton J made a practical order in the appellant’s favour: the obligation to provide transcript was dispensed with.

That meant the appeal would not be deemed abandoned under r 13.22 merely because transcript was not filed. The appellant could proceed without transcript, although Campton J warned that it might not be possible to fully argue some grounds without it.

This is the central practical outcome: the appellant lost the funding argument but preserved the ability to run the appeal.

4. The review application was dismissed

The appellant’s second application sought review of the appeal judicial registrar’s procedural orders. The main relief was to remove the registrar from the matter and adjourn the appeal.

Campton J described the supporting affidavit as containing “pseudo legal jargon” and “inane disparate statutes, rules and phrases”. The Court distilled two real complaints: first, alleged bias or ambush by the registrar; second, the request for more time or adjournment.

The bias/ambush complaint failed. The appellant’s assertion that procedural orders could only be made by consent was wrong. The registrar had power to make procedural orders to prepare the appeal for hearing. The allegations that the registrar used “tactics of bombardment”, acted outside power, or sought to thwart the appeal had no evidentiary foundation and were rejected as scandalous.

5. No adjournment or extra time was justified

The appellant sought adjournment of the appeal or more time to file her Summary of Argument. Campton J rejected this too.

The appeal was already listed for 29 July 2026. The registrar’s orders gave the appellant more than a month from 28 May 2026 to file her Summary of Argument. The appellant did not identify any sufficient reason why further time was required, especially once the Court had decided the appeal would proceed without transcript.

The Court emphasised that litigation must progress efficiently and not be delayed without good reason.

Conclusion

The transcript application was dismissed insofar as the appellant sought Court-funded transcript. However, the Court dispensed with the appellant’s obligation to provide transcript, meaning the appeal would not be deemed abandoned for failure to file it.

The review application was dismissed. The appeal judicial registrar’s procedural orders were not set aside, the registrar was not removed, and the appeal was not adjourned.

The respondent’s costs of both Applications in an Appeal were reserved to the substantive appeal hearing.

🧠 Take-Home Lesson

This case draws an important line between access to appeal and Court-funded transcript. A party may be allowed to run an appeal without transcript, but that does not mean the Court must pay for transcript.

Financial hardship, self-representation and broad natural justice language are not enough. The appellant must show why transcript is necessary for the appeal. If the grounds are legal, vague, unparticularised or capable of being argued from the reasons and appeal book, the Court may refuse to fund transcript but dispense with the transcript obligation so the appeal can proceed.

The case also warns against pseudo-legal drafting. Allegations of bias, abuse of power, constitutional invalidity or “commercial transaction” theories do not assist unless anchored to a real legal issue and evidence. Procedural orders are not invalid because a party disagrees with them. The Court will prioritise efficient progress toward the appeal hearing.

How to ask the Court to allow you to proceed without a Transcript

The correct application is not simply: “I cannot afford the transcript.” The stronger application is: the transcript is not necessary for the determination of the appeal, and therefore the appellant should be relieved from the obligation to obtain and file it.

The applicable Rules are r 13.19(4) and r 13.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Rule 13.19(4) provides that, if transcript is ordered, the appellant is responsible for obtaining it. Rule 13.22 provides that, if transcript is ordered but not provided, the appeal may be taken to be abandoned. The order sought should therefore be framed as an order that the appellant’s obligation to provide transcript under r 13.19(4) be dispensed with or discharged, and that the appeal not be deemed abandoned under r 13.22 for failure to file transcript.

The key authorities are Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 and Smits & Jansen [2025] FedCFamC1A 164. In Sampson & Hartnett, the Full Court identified the relevant considerations, including the nature of the proceedings, whether all or part of the transcript is necessary for the appeal, the cost of transcript, proportionality, the prima facie merits of the appeal, and any other relevant factor. In Smits & Jansen, the Court confirmed that only in exceptional cases will the Court relieve an appellant of the usual burden of providing transcript and instead fund transcript at Court expense.

The practical submission should be: this is not an application for the Court to fund transcript; it is an application to dispense with transcript because the appeal can be determined without it. The appellant should identify each ground of appeal and explain why it can be argued from the reasons for judgment, the orders, the appeal book and the applicable law. This is strongest where the appeal concerns legal error, statutory construction, adequacy of reasons, procedural orders, or errors apparent on the face of the judgment. It is weaker where the appeal depends on oral evidence, cross-examination, credibility findings, or alleged procedural unfairness that can only be demonstrated by transcript.

The supporting affidavit should set out: the transcript cost estimate; the appellant’s financial position; the grounds of appeal; why transcript is not necessary for those grounds; whether the hearing involved cross-examination; whether the relevant material is already in the appeal book; and whether the appeal can be determined from the judgment and filed evidence. The draft order should expressly state that the obligation to provide transcript is dispensed with and that the appeal is not abandoned under r 13.22 because transcript has not been filed.

In Falvo & Melita (No 2), that is exactly the distinction Campton J drew: Court-funded transcript was refused, but the obligation to provide transcript was dispensed with so the appeal could proceed without being deemed abandoned.