Is the FCFCoA a user pays system as between a litigant and the Court? 

On, 13 November 2025, in Partington & Partington [2025] FedCFamC1A 208, Her Honour, Christie J, determined an Application in an Appeal in respect of an appeal from a decision of a Division 2 Judge.  In the Division 2 proceedings Interim Parenting Orders had been made along with case management directions on 27 August 2025.  The appellant father took issue with those Orders and filed an application for the Judge to recuse himself.  At the time of the Application in an Appeal that recusal application had not been dealt with.

The appellant father filed a Notice of Appeal on 29 August 2025 but then subsequently filed an Application in an Appeal seeking three Orders, only one of which was an actual appeal.  The other two Orders sought ought to have been sought via an Application in a Case in the substantive proceedings.

The application, therefore, being dealt with by Christie J, was that the Court provide, at its own expensive, transcripts of three sets of hearings/court attendances on the basis that the appellant was impecunious and needed those transcripts to pursue his appeal.

The appellant father already had the Reasons for Judgment of the primary judge, along with the transcript of the 27 August 2025 proceedings, being one of the transcripts that she sought an order for.  The appellant argued that the earlier transcripts were necessary to support his position that the primary judge was biased in making Orders on 27 August 2025.  It is noteworthy that whilst he was self-represented on 27 August 2025 the appellant was legally represented in the two earlier proceedings but didn’t make an application for the primary judge to recuse himself until after the Orders were made.

The appellant argued that there was a statutory requirement for the Court to provide transcripts, quoting from a section of The Family Law Act 1975 that hasn’t existed since August 2021.

In dismissing the Application in an Appeal Her Honour referred to the decision of Austin J, in Smits & Jansen (2025) FedCFamC1A 164 at [10] wherein His Honour observed:

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 & Beam (2008) 222 FLR 96 at [35-36]).