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Family Law

Court transcript…. what he said, she said, and the judge said.

By January 7, 2019November 1st, 2021No Comments

A Court transcript can be a critical piece of evidence. If you’ve decided to appeal your family court matter, there are going to be inevitable costs incurred, one of which may be the cost of purchasing an official transcript of part or all of your court hearing. Although the cost of obtaining a transcript can appear high, if the outcome of your case turns on you being able to prove to appeal judges that certain things were said in the course of the hearing, and if the assets at stake are substantial, it may well be case of “spend a penny, save a pound”. Or maybe, “spend a pound, save many more pounds”…

A recent appeal in a property matter heard by the Full Court of the Family Court in Melbourne is a good example of where a self-represented litigant may have found it easier to argue his case if he had been able to lead the appeal judges to exact statements in the transcript of his first instance hearing, but he was unable to do so. The appeal judges, on the other hand, appeared to have the benefit of being able to peruse and search the transcript themselves.

In the case of Hadlett & Ralphson, an original judgment had been delivered in the Federal Circuit Court but the husband was not happy with the property orders that were made. In particular, he wanted to argue on appeal that the primary judge had erred in making a finding that he was a “tax cheat” and that this view had then “coloured” the judge’s assessment of the entire matter, leading the judge not to accept the husband’s evidence regarding financial contributions he said he’d made to the parties’ asset pool.

In the matter, the husband and wife had been married for around nine years (with no children) and had headed to court over an asset pool which included two houses, a car and a boat, as well as each party’s respective superannuation.

The original orders made had divided the assets 63% to the wife and 37% to the husband: each party was to retain the real property they owned, the husband was also to pay the wife $108,800 and she was to transfer her interest in the boat to him. A car whose value was in dispute was ordered to be sold and the proceeds divided in the same proportion. Each party kept their own super.

The husband was self-represented and as is frequently the case with self-represented litigants, he was mildly criticised by the appeal judges over the form of his grounds of appeal, which were frequently “general” and often “a mere reiteration of the case [he] unsuccessfully pursued before the primary judge, and did not attempt otherwise to identify error”.  Unfortunately, an appeal is not a second chance at getting the result you wanted the first time. There has to be an identifiable error of law or mistake of fact. The primary judge has to be “plainly wrong, his decision being no proper exercise of his judicial discretion”.

But, clearly in the interests of justice, the appeal judges sorted out the husband’s submissions into a series of discrete grounds, each of which they meticulously dealt with. However the appeal judges noted that there was “one over-arching contention” in the husband’s material, namely that he did not feel he had received a fair trial because the primary judge found him to be “guilty of tax fraud” and that this finding then created a “gross bias” in favour of the wife, with the primary judge deciding he “was not to be believed”:

[I]t all comes back to the same point. All my evidence has been disregarded based on a false accusation that I’m a tax cheat, which is untrue, unproven …

However the appeal judges dismissed his complaint, finding that “the scepticism held by the primary judge fell well short of a finding of tax evasion or anything similar” and explaining that what the primary judge’s findings instead meant was that instead of resolving the matter on the basis of the husband’s suspected non-disclosure of income, actually the matter was resolved on the basis that his stated income meant he just could not have made payments in relation to the assets that he said he had made. In contrast, the primary judge was able to accept the wife’s explanation of how assets were acquired, because her income was clearly sufficient. (The husband’s income over a period of seven years totalled only around $29,000 compared to the wife’s for the same period of around $444,000.)

This is where the issue of the transcripts becomes relevant. The husband tried to argue that the primary judge had said certain things in his hearing, but unfortunately for the husband, the court transcript, when the appeal judges searched it, simply didn’t bear out those claims.

For example, at one point the husband claimed there had been an “uproar from the judge” which led the husband to abandon his questioning”, but the transcripts did not reflect this.

In another example, the husband claimed he had been “hurried along and threatened by the trial judge”, but:

The husband did not take us to any passages of the transcript that support his submissions and a reading of the transcript does not bear them out…

The husband’s response when this was pointed out was to assert that the transcript was incorrect in parts.

It’s unlikely that the transcript was so substantially incorrect, though. Auscript, the company which has provided transcription services to the Family Court for over 24 years and was in 2014 re-awarded the exclusive contract for digital recording and transcription management for the Family Court, claims on its webpage that it is “an ISO 9001:2015 certified provider, producing transcripts with the highest raw accuracy rating of 99.5%”.

The appeal was dismissed and costs were awarded against the husband. He opposed the costs order on the grounds that he could not afford it, being in receipt of Newstart payments and having an income insufficient to meet his expenses. But the appeal judges noted that “impecuniosity is not necessarily a bar to a costs order because otherwise an impecunious party could litigate with impunity”. He will now have to pay his ex-wife’s almost $10,000 in costs—and perhaps regrets not having shelled out for a transcript of his court proceedings, which may have helped him in his appeal.

There are some ways to reduce the cost of obtaining your Court transcript. For example, you can isolate that part of the proceedings which is relevant to your appeal and only order that section in transcript form. Or, you may be able to choose a turnaround time that is less expensive—transcript provision ranges from “progressive” (“draft Court transcript of morning session by 2pm, final transcript of whole day by 6pm”), to same day, next day, 3 day, 5 day or 10 day turnarounds, with costs naturally highest for progressive transcripts.

You can also read more about Court recordings and Court transcripts at the Family Court’s web page here.

And if you like, you can read the case here.

Do you need assistance with a property settlement or perhaps in preparing an appeal? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400 to discuss how we can help in your situation.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.

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