Sunday, 7 September 2008

Family Court: we do not pay for the Transcript

In the recent Family Court case of Oakley and Cooper, the court was at pains to point out that ordinarily it would not pay for the cost of transcript on any appeal.

There are usually two key procedural steps to any appeal:
  • settling the appeal book, which is the book setting out all the documents that the appeal court needs to read, and as part of that
  • obtaining the transcript of the earlier hearing.

Obtaining the transcript can often be the most expensive step.

In Oakley and Cooper, the father was appealing from a Federal Magistrate's decision to order only substantial and significant time: the father wanted equal time. The difficulty the father had was that he was broke: he could not afford the cost of the transcript. He then applied for the court to provide the transcript instead. The independent children's lawyer would provide the appeals book, but the snag was that Legal Aid Queensland would not, as a matter of policy, provide the transcript.

The Full Court held:

The authorities to which we have referred indicate there is some controversy
concerning the existence of the power of the Court to make an order for the
preparation of transcript (at the Court’s own expense) for use in an appeal. In
our view, if such power does exist, it would need to be exercised sparingly,
especially given that, unlike other jurisdictions, the Family Court does not
have a budgetary allocation for provision of transcript to litigants.

Assuming, without deciding, that the Court does have the power to make such
an order, we are not persuaded this would be an appropriate case for the
exercise of the power. The only reason advanced by the appellant in support of
his application was his lack of funds. Whilst we accept that the means of the
appellant would be a relevant consideration, in our view limited means alone
would not be a sufficient basis for the making of such an order. We therefore
intend to dismiss the application.

The orders we intend to make will provide for the appeal books to be prepared
by the Independent Children’s Lawyer, as was offered. If the appellant does not
provide the transcript, we consider the appeal should nevertheless proceed,
albeit the appellant must appreciate that the absence of transcript will have
serious implications for the way in which the appeal will be conducted.

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