Partington & Partington [2025] FedCFamC1A 208 (13 November 2025)

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Partington & Partington has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 27 August 2025 a judge of the Federal Circuit and Family Court of Australia (Division 2) made an interim parenting order and some case management directions.
2. After the primary judge made orders and delivered reasons, the appellant foreshadowed, and then subsequently filed, an application that the primary judge recuse himself. That application is yet to be determined.
3. On 29 August 2025 the appellant filed a Notice of Appeal. While the Notice of Appeal seeks leave to appeal, the appellant is entitled to appeal an interlocutory parenting order as of right.
4. On 3 September 2025 the appellant filed an Application in an Appeal. The Application in an Appeal seeks the following orders:

(1) Court to urgently provide transcripts of 28 Feb, May final hearing, and 27 Aug 2025 (judgment reasons), directly relevant to the Appeal; Respondent is impecunious; alternatively permit party procured transcripts with Registry audio/visual, transcripts shared, costs shared, costs reserved.

(2) ICL to urgently ascertain [X ("the child's)] views on Communion attendance and report by 5 Sept 2025 for the purposes of the pending Appeal.

(3) Balance of 27 Aug 2025 Application in a Case to be urgently listed before another Judge, given recusal is not listed until November; reserved judgment from May 2025 final hearing not to be delivered pending recusal, stay, and appeal; matter to be reallocated if recusal/appeal succeeds.

Minute note: Further particulars, including proposed interim event orders regarding [X's] First Holy Communion should the appeal be successful, appear in the Urgent Further Minutes filed with the cover letter of 2 Sept 2025.

1. The only part of that Application in an Appeal which seeks orders in an appeal is proposed order 1. The affidavit of 3 September 2025 filed in support of the Application in an Appeal says:

8. The transcripts necessary for this appeal and related applications include:

1. the directions/compliance hearing on 28 February 2025;

2. the final hearing days conducted in May 2025; and

3. the directions hearing on 27 August 2025, which contains His Honour's oral reasons.

4. Those oral reasons constitute " reasons for judgment'' within the meaning of s 94AAA(9) of the Family Law Act 1975 (Cth) and must be made available to the parties.

5. In my circumstances - as evidenced by my Health Care Card' (Annexure D) - I cannot afford transcript fees. I respectfully request that the Court provide the transcripts without charge, in light of my financial hardship and the urgency of these proceedings. I also ask that the Court direct VIQ Solutions to urgently prepare the transcripts listed above, so that this appeal may be properly conducted without further delay.

6. The transcript of 27 August 2025 will also confirm the precise wording of His Honour's refusal to abridge time and refusal to consider the 26 August 2025 affidavit and submissions. I will tile a supplementary affidavit annexing the relevant passages once the transcript has been received.

(Emphasis in original)

1. The Reasons for Judgment dated 27 August 2025 are available. The transcript of proceedings before the primary judge on 27 August 2025 are also available and have been made available to the appellant.
2. The appellant submitted that earlier transcripts were necessary because the primary judge had heard the evidence in the parties' final proceedings in May 2025 and in reasons for judgment in the interim matters said the following at [2]:

The timing of this application has given me advantages often not available in interim hearings. I have received a much greater volume of evidence than is otherwise available at an interim stage. I have heard some of that evidence tested by cross-examination. I have heard the final submissions of each party. I am in the midst of reviewing all of that evidence, and the submissions made, and writing my judgement. Indeed, the matter might be considered to be all but concluded save for the father's application to reopen his case. Despite all of those advantages, noting that I am yet to determine the father's application to reopen his case and noting the extraordinary volume of further material the father wishes the court to consider, I have maintained a degree of circumspection about the facts upon which I rely in determining this interim application.

1. I accept that the primary judge had regard to that which was before him on the final application when determining the interlocutory application.
2. Essentially, the appellant submits that the earlier transcripts are necessary if he is to establish that the primary judge's order on 27 August 2025 is impugned by apprehended bias.
3. The appellant submitted that the transcript of the hearing in May 2025 would demonstrate that he was "cut off" by the primary judge, "gaslit" by the primary judge and told to "get a real job". Further, he said that the primary judge disagreed with his interpretation of scripture, mocked his father who was a witness, yelled, caused his solicitor to sweat, and engaged in sexism, religious bigotry and discrimination on the basis of his Attention Deficit Hyperactivity Disorder (ADHD). The appellant submitted that the earlier transcript would demonstrate that the primary judge had "tag teamed" with senior counsel to cross-examine him and prevented his lawyers' proper cross-examination of the respondent.
4. The appellant was legally represented when the matter was initially before the primary judge and appeared on his own behalf when the matter was before the Court on 27 August 2025. No application for recusal was made until after judgment was delivered on 27 August 2025.
5. It is important to understand that the substantive appeal against the Orders of 27 August 2025 relates to an order which restrained the appellant from attending a First Holy Communion on a date which has now passed.

1. The contents of an appeal book are not prescribed except in so far as required by Rules 13.20 and 13.21 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules").
2. Where the appeal book is to contain transcript, the Rules provide at 13.19(4):

The appellant, or if so ordered the cross‑appellant, is responsible for obtaining any transcript of the hearing relevant to the appeal or cross‑appeal.

1. Rule 13.22 provides that if transcript has been ordered to be filed, failure to do so will see the appeal deemed abandoned.
2. The appellant, in his affidavit at [9] refers to a section of the Family Law Act 1975 (Cth) which has not been in force since 31 August 2021 as supportive of the proposition that the "reasons for judgment" must be made available. It was not. In any event, that has occurred.
3. The appellant contends that transcript of the following additional dates is necessary to prosecute this appeal:

1. Two separate issues arise: Firstly, are the transcripts necessary to prosecute the appeal? Secondly, do the factual circumstances of this case warrant provision of further transcripts by the Court contrary to the terms of Rule 13.19(4)?
2. For the purpose of this application, I accept that the appellant cannot fund the transcript.
3. However, as Austin J observed in Smits & Jansen (2025) FedCFamC1A 164 at [10]:

The Court is only funded to decide litigation, not to fund the litigation. Only in exceptional cases will an appellant be relieved of the usual burden of providing the trial transcript for an appeal and instead have the transcript provided by the Court at its own expense for the appellant's benefit (Forbes & Bream [2008] FamCAFC 189; (2008) 222 FLR 96 at [35]-[36]).

1. Contrary to the appellant's submission, there is no statutory requirement for the Court to provide transcripts. The principles which emerge from the case law are as follow:

(a) The obligation to provide transcript usually resides with the appellant;

(b) The obligation to provide transcript may be waived;

(c) If the interests of justice so require, the Court may provide transcript in whole or part;

(d) The circumstances in which transcript is provided by the Court are likely to be exceptional.

1. Here, the Court has provided the transcript of the interlocutory hearing on 27 August 2025.
2. In Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 at [16] the Full Court emphasised the discretionary nature of the decision but noted that the following matters may be of utility when considering the exercise of that discretion:

(a) Whether the case is a financial or parenting case.

(b) Whether the whole transcript or part thereof is necessary for the determination of the appeal or part of the appeal.

(c) The likely cost of the relevant transcript and whether the applicant can afford all or part of the cost of the transcript.

(d) The proportionality of the cost of the transcript to the appellant's anticipated costs in relation to the whole appeal, including the preparation of the appeal book(s).

(f) Whether the question of providing a transcript can be left to the Full court hearing the appeal.

1. It is important then to reflect on the nature of the proposed appeal. It seeks to appeal an order that the appellant be prevented from attending an event that has already occurred.
2. This Court would not ordinarily allow an appeal, even if the grounds of appeal contain some merit, if there would be no utility in allowing the appeal (Reece & Reece [2011] FamCAFC 24 at [108]-[109]; Naparus & Frankham [2018] FamCAFC 190 at [4] and [17]; Naparus & Frankham (No. 2) [2020] FamCAFC 238 at [46]), Pitman & Hynes (No. 3) [2021] FamCAFC 82). Given the event has come and gone, that would appear to be the position here.
3. The appellant said that the appeal was not futile because he has other children who will in due course receive sacraments, and he is not confident about when the proceedings will be resolved. However, the ability of the appellant to attend at religious events of significance to the children is a final issue in a case which is presently reserved.
4. In those circumstances this is not a case in which I could be satisfied that it is incumbent on the Court in the interests of justice to provide transcripts. The application will be dismissed.
5. The appellant's appeal against the interlocutory order remains outstanding. The appellant's application for the primary judge to recuse himself remains outstanding, and the primary judgment in the proceedings is reserved pending the determination of the recusal application.
6. The appellant will have the opportunity to argue that, notwithstanding the date of the particular event has passed, the appeal is not futile and make argument about apprehension of bias by reference to the transcript of the proceedings on the day on which the order was made.
7. I recognise that given the outstanding applications outlined above, my determination of this particular application may not finalise the issues which the appellant seeks to ventilate, but I am satisfied that the interests of justice do not require provision of further transcripts in relation to this appeal.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie.