Transcript Not Funded, Appeal Not Killed: Court Refuses Public Expense but Lets Mother Proceed Without Transcript

In Steinar & Steinar [2026] FedCFamC1A 113, McClelland DCJ dismissed the mother’s application for the Court to provide trial and case management transcripts at public expense, but partially allowed her alternative application by dispensing with the requirement that she obtain and file transcript. The result was important: the mother did not get publicly funded transcript, but her appeal was not deemed abandoned merely because she could not provide it. The Court accepted that transcript may be relevant to some of her procedural unfairness and bias arguments, but held that her request was disproportionate, insufficiently supported by financial evidence, and weakened by prolix and poorly particularised appeal grounds.

🧩 Facts and Issues

Facts:

The appellant mother appealed against parenting orders made under Pt VII of the Family Law Act 1975 (Cth) concerning the parties’ 14-year-old son. At first instance, the mother sought orders that would effectively make the continuation of the child’s relationship with the father dependent on the child’s wishes. The Independent Children’s Lawyer, supported by the father, sought a transfer of residence to the father and a moratorium on time with the mother.

The primary judge found that the child was exposed to a risk of ongoing psychological harm in the mother’s care because of sustained non-compliance with orders and her inability to support the child’s relationship with the father. However, the primary judge did not take the more extreme step of immediately changing residence with a moratorium on maternal time, given the child’s age, attachments, and relationship with his sibling. Instead, orders were made for the father to have sole parental responsibility, while the child continued spending substantial time with both parents under structured arrangements.

The mother then filed an Application in an Appeal seeking that the Court provide transcripts at public expense, not only for the trial but also for earlier case management events. The estimated cost was approximately $11,857. In the alternative, she sought dispensation from the requirement to file transcript.

Issues:

1. Should the Court provide transcript to the mother at public expense?
2. Did the mother establish exceptional circumstances?
3. Was transcript necessary for determination of the appeal?
4. Was the cost proportionate to the issues raised?
5. Were the mother’s grounds of appeal sufficiently particularised to justify public funding?
6. Should the appeal be allowed to proceed without transcript to avoid deemed abandonment?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• Pt VII — parenting proceedings and best-interests context.

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

• r 13.02 — an appeal is commenced by filing a Notice of Appeal.
• r 13.19(4) — where transcript is ordered, the appellant is responsible for obtaining it.
• r 13.22 — where transcript is required but not provided, the appeal may be deemed abandoned.

📌 Precedents Relied On

• Gowden & Taggart [2026] FedCFamC1A 106 — summarised the principles for transcript applications, including the ordinary obligation on an appellant to obtain transcript.
• Smits & Jansen [2025] FedCFamC1A 164 — only in exceptional cases will the Court relieve an appellant of the usual transcript burden and provide transcript at public expense.
• Forbes & Bream (2008) 222 FLR 96 — transcript is not routinely provided by the Court; public funding of transcripts would affect other necessary Court expenditure.
• Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 — relevant factors include the nature of the proceedings, necessity of transcript, cost, proportionality, prima facie merits, whether the matter can be left to the appeal court, and other relevant factors.
• Horn & Vaughn [2026] FedCFamC1A 7 — grounds of appeal should precisely and concisely identify error.
• Hays & Hays [2026] FedCFamC1A 8 — appeal grounds are not an opportunity for a rambling critique of the judgment.
• Shinohara & Shinohara [2025] FedCFamC1A 126 — the Notice of Appeal defines the metes and bounds of the appeal and must identify error with precision.
• Argyri & Conroy [2025] FedCFamC1A 6, Aslett & Coren [2025] FedCFamC1A 92, and Keighley & Keighley [2023] FedCFamC1A 146 — self-representation does not remove the obligation to properly particularise appeal grounds.
• Whiteoaks & Marton [2022] FedCFamC1A 33 and Balfour & Ferber [2024] FedCFamC1A 179 — caution against deeming an appeal abandoned at an interlocutory stage where some grounds may be capable of being argued without transcript.

🧠 Analysis

Issue

Was the mother entitled to publicly funded transcript, or alternatively, should she be allowed to proceed with the appeal without filing transcript?

Rule

The ordinary rule is that the appellant must obtain transcript if transcript is required. Court-funded transcript is exceptional. The Court considers the nature of the case, whether transcript is necessary, the cost, proportionality, the appellant’s financial position, the apparent merits of the appeal, and whether justice requires departure from the usual position.

However, refusing public funding does not automatically mean the appeal must be abandoned. The Court may dispense with the transcript requirement where refusing to do so would kill the appeal at an interlocutory stage, particularly where at least some grounds may be capable of being argued without transcript.

Application

1. The mother established hardship, but not enough

The mother relied on part-time employment, Centrelink benefits and a concession card. The Court accepted she was working part-time and that transcript would impose a significant financial burden. However, she did not provide evidence of all other financial resources that might be available to her.

That was important. A transcript application needs more than a general statement of hardship. The Court expects evidence of income, expenses, assets, liabilities, available resources, and why the appellant cannot fund even a narrower transcript request.

2. Transcript was relevant, but the request was disproportionate

McClelland DCJ accepted that transcript was required for the Full Court to consider the mother’s grounds alleging procedural unfairness and bias. That was a point in the mother’s favour.

But the transcript request went too far. The mother sought transcript not only of the trial but also of case management events before a Division 2 judge on multiple earlier dates. She did not provide a plausible argument explaining how those case management events caused appealable error in the final parenting orders. She also did not prioritise the parts of transcript most relevant to her grounds, nor explain whether she could afford a narrower and more targeted transcript.

That made the application disproportionate.

3. The merits problem hurt the funding application

The Court was not satisfied the appeal was sufficiently meritorious to justify public funding of transcript. The mother’s grounds were described as unnecessarily prolix, repetitive, and containing multiple issues within each ground.

McClelland DCJ emphasised that a Notice of Appeal must identify error precisely and concisely. Appeal grounds are not a place for a rambling critique of the primary judge’s reasons. The purpose of the Notice of Appeal is to define the metes and bounds of the appeal. Poorly drafted grounds can obscure the real issues and make it difficult for the appellant to discharge the burden of establishing appealable error.

Self-representation did not cure that problem. The Court accepted that assistance may be given to self-represented litigants, but the requirement to properly particularise appeal grounds still applies.

4. Public funding was refused

Taking all matters together, the Court dismissed the request that the transcript be provided at public expense. The request was not sufficiently exceptional. The transcript sought was too broad, the financial evidence was incomplete, the appeal grounds were prolix and poorly particularised, and the apparent merits did not justify the public purse meeting the cost.

5. But the Court still allowed the appeal to proceed without transcript

This is the practical win. Although the Court refused to fund transcript, it did not allow the appeal to be deemed abandoned.

McClelland DCJ accepted there was “considerable merit” in the respondent and ICL’s argument that transcript should not be dispensed with. But the Court was concerned about the harshness of deeming the whole appeal abandoned at an interlocutory stage, especially where at least the first two grounds arguably did not require access to transcript.

The Court relied on the caution expressed in Whiteoaks & Marton and Balfour & Ferber: an appellant may choose to run an appeal without transcript, but must bear the reduced prospects and potential costs consequences.

Accordingly, the Court made an order dispensing with the requirement that the mother obtain and file transcript. Costs were reserved as costs in the cause.

Conclusion

The mother’s application for publicly funded transcript was dismissed.

However, her alternative application succeeded in part. The Court dispensed with the requirement for her to obtain and file transcript under the appeal rules. The appeal therefore remained alive, although the mother was warned that running the appeal without transcript may reduce her prospects and expose her to costs if unsuccessful.

🧠 Take-Home Lesson

This case confirms the distinction between two very different applications:

Court-funded transcript is exceptional and difficult to obtain.

Permission to proceed without transcript may be granted where refusing dispensation would effectively kill the appeal at an interlocutory stage, particularly where some grounds can arguably be determined without transcript.

The strategic mistake is asking for everything. A broad request for trial plus case management transcripts, without explaining why each part is necessary, looks disproportionate. The better strategy is to identify the precise grounds, isolate the exact transcript passages needed, and explain why those passages are necessary — or alternatively, explain why the appeal can proceed without transcript at all.

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

The proper application is made under the appeal transcript regime in Pt 13.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), relying specifically on r 13.19(4) and r 13.22. Rule 13.19(4) places responsibility for transcript on the appellant where transcript is ordered. Rule 13.22 creates the risk that the appeal may be deemed abandoned if transcript is not provided. The order sought should therefore be framed as:

“An order dispensing with the requirement that the appellant obtain and file transcript under Pt 13.3 / r 13.19(4), and confirming the appeal is not to be deemed abandoned under r 13.22 by reason of the appellant not filing transcript.”

The key cases to rely on are:

• Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 — identifies the relevant factors: nature of proceedings, whether transcript is necessary, cost, proportionality, prima facie merits, whether the issue can be left to the appeal court, and other relevant factors.
• Smits & Jansen [2025] FedCFamC1A 164 — confirms publicly funded transcript is exceptional.
• Forbes & Bream (2008) 222 FLR 96 — explains why transcript is not routinely provided at public expense.
• Gowden & Taggart [2026] FedCFamC1A 106 — transcript may be dispensed with where the appeal can be determined from the reasons, orders and appeal book, especially where there was no cross-examination or the grounds do not require transcript.
• Falvo & Melita (No 2) [2026] FedCFamC1A 108 — the Court refused transcript funding but dispensed with the obligation to provide transcript so the appeal could proceed.
• Whiteoaks & Marton [2022] FedCFamC1A 33 and Balfour & Ferber [2024] FedCFamC1A 179 — support caution against killing an appeal at an interlocutory stage where some grounds may be arguable without transcript.
• Steinar & Steinar [2026] FedCFamC1A 113 — confirms the same practical approach: public funding refused, but transcript requirement dispensed with to avoid deemed abandonment.

The strongest evidence is an affidavit that does all of the following:

1. identifies the transcript estimate and why it is unaffordable;
2. gives full financial particulars, not just a concession card;
3. identifies each ground of appeal;
4. explains which grounds do not require transcript because they can be argued from the reasons, orders, appeal book or legal principles;
5. narrows any transcript request to only the parts truly necessary;
6. explains why case management transcripts are unnecessary or, if sought, exactly how they caused appealable error; and
7. accepts the risk that proceeding without transcript may limit the appeal and carry costs consequences.

The winning submission is:

“This is not an application for the Court to fund transcript. It is an application to prevent the appeal being deemed abandoned where at least some grounds can be determined without transcript. The appellant accepts that any grounds requiring transcript may be weakened, but the appeal should not be extinguished at this interlocutory stage.”