Smits & Jansen [2025] FedCFamC1A 164 (10 September 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 Smits & Jansen has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons explain the dismissal of the appellant's review application within this appeal.

1. The pending appeal is listed for hearing before the Full Court on 28 October 2025.
2. The appeal is brought from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 29 May 2025 dismissing the parties' respective applications to vary parenting orders in relation to their only child.
3. Parenting orders were made between the parties on two prior occasions in May 2018 and February 2022 to finalise causes of action between them under Pt VII of the Family Law Act 1975 (Cth) ("the Act").
4. Proceedings were commenced by the appellant for a third time in April 2024, to which the respondent joined issue by filing a Response in July 2024. The trial of the fresh dispute proceeded before the primary judge over five days between March and May 2025. Judgment was reserved for a few weeks and pronounced on 29 May 2025. His Honour dismissed the parties' respective applications (Orders 1 and 2), confirmed the last orders made in February 2022 would remain in full force and effect (Order 3), and discharged the Independent Children's Lawyer (Order 4).
5. Following the appellant's appeal from those orders, the appeal registrar made procedural orders to ensure the readiness of the appeal for hearing in October 2025.
6. Initially, the appeal registrar ordered the appellant to procure and file the transcript of the trial (Orders 3-5 made on 28 July 2025), consistently with the provisions of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Those orders were later revised in response to an application filed by the appellant seeking that the Court obtain the trial transcript for him at the Court's expense. The appeal registrar declined the application but did give the appellant some measure of relief by dispensing with his obligation to obtain the transcript, permitting him to prosecute the appeal without it (Orders 1-5 made on 6 August 2025).
7. The appellant was dissatisfied with that decision and reviewed it by filing an Application in an Appeal on 26 August 2025. He still wants the Court to procure the whole trial transcript at its expense.
8. In support of his application, the appellant relies upon his affidavit filed on 21 July 2025 (in support of the original application) and his affidavit filed on 26 August 2025 (in support of the review application - his "second affidavit").

1. 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]).
2. The considerations which will influence whether such an exceptional order might be made in the exercise of discretion include these (Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 at [16]):

(a) whether the case is financial or child-related;

(b) whether the whole or only part of the transcript is integral to the appeal;

(c) whether the appellant can defray any part of the transcript cost;

(d) the proportional cost of the transcript to the anticipated cost of the appeal; and

(e) the prima facie merit of the appeal.

1. The appellant has investigated the cost of the transcript to be approximately $7,000 (at [30] of his second affidavit"), exclusive of the transcript of the final submissions, which sum is not insubstantial.
2. The child who is the subject of the appeal lives primarily with the appellant and his financial support of the child is largely unassisted by the respondent. The appellant earns meagre income, supplemented by Centrelink payments. It may be accepted the appellant cannot afford the transcript - hence the appeal registrar's decision to relieve him of that burden.
3. However, the appellant wants to shift the financial burden to the Court, which burden should not be accepted without very good reason. It should not be shifted in this instance for two reasons: first, the parties' litigation has already used a disproportionate share of the Court's resources; and secondly, the success of the appeal does not appear to pivot on the availability of transcript.
4. Litigation between these parties started more than eight years ago in February 2017 and was initially finalised by orders made in May 2018. Fresh proceedings were commenced only six months later in December 2018, finalised again by orders made in February 2022. The third set of proceedings were commenced in April 2024, finalised by the orders made in May 2025. This appeal was commenced in June 2025. All but the original proceedings have been commenced by the appellant. Due to his difficult financial circumstances, the appellant has already been relieved of the usual obligation to pay the filing fee for the Notice of Appeal and also relieved of the obligation to prepare and file the Appeal Book. His request for provision of the transcript is but another burden on the Court.
5. The grounds of appeal which the appellant intends to prosecute are numerous. There are 25 grounds within the Notice of Appeal filed on 25 June 2025, many of which are attended by sub-grounds. Broadly, they contend for:

(a) legal error (Grounds 2 and 5);

(b) mistaken findings (Grounds 1, 7, 8, 9, 10, 12, 19 and 20);

(c) discretionary error by failing to consider relevant factors (Grounds 3, 4, 6, 11, 13, 14, 15, 16, 17, 18, 21, 23, 24 and 25); and

(d) some indistinct form of error (Ground 22).

1. The appellant deposed this in his second affidavit:
   1. The whole transcript is required to argue the full extent of the Appeal for the following reasons:
   2. Significant events occurred since the filing of the affidavit in early March 2025 and during the trial, the details of which are only recorded during cross-examination in the trial and briefly during final submissions. Among others, these events are important for the considerations of [the child's] views and judging the credibility of the mother's evidence.
   3. Further it is noted that the trial Judge did not include the evidence given by the Child Impact Reporter in his judgement.
   4. All parties including [the appellant's former partner] and [the child's school principal] were cross examined on these matters and the information was put to the Child Impact Reporter and the information required to ague the appeal is distributed across the entire trial. The time required to select relevant passages and related cost of the audio recordings ($1650) is disproportional to the cost saving that could be achieved.

1. Such evidence of the appellant's opinions is rejected upon analysis of the grounds.
2. The legal errors asserted by the grounds of appeal do not depend upon the availability of the transcript. Such errors will be evident (or not) from the comparison of the reasons for judgment with applicable legal principles.
3. The factual mistakes asserted by the grounds of appeal appear to rely, in the main, upon the comparison of the reasons for judgment with the filed evidence, which documents are already contained within the Appeal Book. Save in respect of Ground 20, the grounds do not identify any oral evidence given in cross-examination which is integral to those arguments.
4. The grounds which allege the failure to take multiple considerations into account do refer to some oral evidence given in cross-examination (Grounds 4(b)(i), 18(a) and 18(e)), but otherwise refer to considerations within the written evidence contained in reports and affidavits, which documents are already part of the Appeal Book.
5. The grounds which do seem to depend upon the availability of the transcript are:

(a) Ground 4(b)(i), which alleges some concession was made orally by the court child expert about the nature of the child's relationship with the mother;

(b) Ground 18(a), which alleges the primary judge failed to consider "in its entirety" the court child expert's evidence;

(c) Ground 18(e), which alleges the primary judge failed to consider how the respondent was "[unable] to verbalise in cross-examination that she loves the child"; and

(d) Ground 20, which alleges it was not open to find the respondent was "honest" because of multiple inconsistencies in her evidence.

1. In his second supporting affidavit, the appellant referred to some oral evidence given in cross-examination by him, his former partner, the respondent, the child's school principal, and the court child expert (at [65]-[71]), but those pieces of evidence do not readily or easily seem to support the arguments advanced by Grounds 4(b)(i), 18(a) and 18(e).
2. As for Ground 20, the appellant deposed this in his second affidavit:
   1. The full transcript is required to proof that the mother has not provided the truth, the whole truth, and nothing but the truth, but instead provided a highly distorted account of events, omitted and provided false or misleading information to the Court and relevant external service providers such as police, medical professionals and child safety.

1. Contrary to the appellant's expectations, it is unlikely that much will eventually turn in the appeal on his allegations of the respondent's alleged unreliability as a witness but, imagining for the moment it is a relevant consideration, comparison of the transcript of the respondent's oral evidence with inconsistent documents will not of itself demonstrate the primary judge was obliged to disregard all she said as being false.
2. Under the February 2022 orders, the child lives with the appellant for eight nights per fortnight and with the respondent for the other six nights per fortnight. The appellant has sole parental responsibility for the child (at [4]). The appellant sought to curtail the time the child lives with the respondent (at [33]-[41]), while the respondent sought to reverse the child's primary residence, wrest parental responsibility from the appellant, and have the child spend time with the appellant (at [42]-[46]). The Independent Children's Lawyer ("the ICL") advocated for retention of the existing orders, placing heavy reliance upon the evidence of the court child expert (at [49]-[50]). His Honour agreed with the ICL and dismissed the parties' applications to vary the February 2022 orders because the evidence did not warrant their variation (at [56] and [119]-[122]).
3. Against that background, one is left to wonder about the materiality of the points the appellant seeks to make by Grounds 4(b)(i), 18(a), 18(e) and 20. Such wonderment is only exacerbated by the content of the appellant's Summary of Argument, which he filed on 1 September 2025 in readiness for the appeal hearing. It is a very lengthy document. Within it, there are only eight references to evidence given in cross-examination, though none of those references seem pertinent to the grounds. Relevantly, the appellant referred to:

(a) under Ground 3 - evidence given in cross-examination by the court child expert about the child being estranged from the respondent (at [88]), and evidence given in the cross-examination by the respondent that the child told her in April 2025 he would not return to her care (at [108]);

(b) under Ground 4(c) - evidence given by the appellant and his witness about their efforts to facilitate the child's exchange with the respondent (at [147]);

(c) under Ground 5 - evidence given in cross-examination by the court child expert about the rupture and need for repair of the child's relationship with the respondent (at [183]) and evidence given by the respondent of her refusal to fund the child's private education unless he moved to a different location (at [187(b)]); and

(d) under Ground 8 - evidence given in cross-examination by the respondent about the appellant wanting to go to the hospital on one occasion (at [221]) and documents put to the respondent during cross-examination (at [224] and [228]);

1. The appellant does not evidently rely much upon the transcript. Even if he might find the transcript useful in the appeal, its prospective utility is not so obvious at this juncture to justify the Court expending its own resources to acquire it for him. The cost of the transcript seems disproportionate to its utility.
2. Although this appeal relates to parenting orders, the transcript is not evidently critical to the appeal or the child's welfare. Under the existing orders, the child lives primarily with the appellant. He proposed to the primary judge that the child continue to spend unsupervised time with the respondent after a moratorium period (at [33]).
3. The review application is dismissed. However, rather than re-imposing the burden upon the appellant of obtaining and filing the trial transcript, the favourable orders of the appeal registrar will be left undisturbed. The appellant will have to prosecute the appeal without transcript.

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