Tuesday, 27 January 2009

Family Court case: who pays for transcript

There is nothing like the cost of obtaining transcript to act as a deterrent to appealing.

In the recent Full Court of the Family Court case of Forbes and Bream, one of the issues was who was to pay for the transcript. The father, who was the appellant, said that he could not afford to pay (something which the Full Court ultimately rejected). The mother said that a transcript would be useful, but she was not going to pay for it.

Chief Justice Bryant, and Justices Boland and Stevenson discussed the issue of the cost of transcript:


From the inception of the operation of the Family Court in 1976, transcript
has not been routinely provided to parties. The cost is not provided for in the
budget of the Court, and the cost of doing so routinely, would impinge on other
necessary expenditure for the proper operation of the Court. Thus in hearings of
matters at first instance parties will be responsible for the cost of transcript
if they wish to obtain it. However, the Court has from time to time judiciously
provided transcript to parties where it is demonstrably in the interests of
justice to do so. A common example is the provision of transcript of the
evidence of an expert witness in a parenting case.
There is no legislative basis in the Family Law Act 1975 (Cth) or the Family Law Rules 2004 (“the Rules”) providing for such transcript to be made available by the Court. The Rules relating to appeals deal specifically with the obligation to provide a transcript. Rule 22.23 states that the “appellant or, if so ordered, the cross-appellant must arrange to obtain the relevant parts of the transcript of the hearing...”. In contrast, rule 22.24 enables the Court to order that the Appeal Registrar, rather than the appellant, prepare the appeal books, if “exceptional hardship” would otherwise be caused to the appellant. However, the note to rule 22.24 clarifies that even if the
appellant is excused from preparing the appeal books because of “exceptional
hardship”, the obligation remains upon the appellant to obtain the transcript of
proceedings pursuant to rule 22.23.


It logically follows from the Rules that ordinarily the appellant should bear the cost of provision of the transcript at least in the first instance. This has certainly been the case in practice in appeals heard in this Court. However, in this case the father states that he is impecunious and cannot afford to obtain a transcript so as to comply with the Rules. The question then is whether this Court has a residual discretion to
order provision of a transcript at the Court’s expense in such
circumstances....


The Family Law Act is silent on the question of the provision of
transcript and provides no obligation, nor in our view any impediment, to the
Court providing transcript in a particular case. Although Rules 22.23 and 22.24
place an obligation on the appellant (or cross-appellant) to provide transcript
for insertion in the appeal book, the Court may dispense with the application of
the Rules if warranted in a particular case. On one view this could mean simply
that the requirement to provide transcript is waived but we do not consider the
meaning to be necessarily so constrained.


If the interests of justice require it, and the appellant or cross-appellant or party seeking it cannot afford the cost of transcript, the Court may in the exercise of its discretion agree to provide the transcript of relevant parts to enable the appeal to
proceed. In Fortnum & Fortnum (No 2) [2008] FamCAFC 73 Finn J described this as part of the “supervisory role of the Full Court”. We would add to her Honour’s explanation the “supervisory power of the Court” may necessarily, in a particular case, require the Court to have transcript to fulfil its statutory function under s
94(2) of the Family Law Act. Thus the Court hearing an appeal may order the
provision of transcript as an exercise of its incidental powers.

We do not need to define the circumstances in which the discretion may
be exercised. Suffice it to say that we doubt whether it would be
exercised in anything other than exceptional cases
. Furthermore, we
consider that the vast majority of such cases will relate to parenting orders, where the necessity to arrive at a result in the best interests of the child may provide compelling reasons for transcript to be provided at the Court’s expense
if the parties are impecunious. [emphasis added]

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