Brauner & Brauner
[2025] FedCFamC1A 15
•6 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Brauner & Brauner [2025] FedCFamC1A 15
Appeal from: Brauner & Brauner (No 2) [2024] FedCFamC1F 748 Appeal number: NAA 318 of 2024 File number: MLC 14605 of 2019 Judgment of: AUSTIN J Date of judgment: 6 February 2025 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Review of decision – Where the appellant seeks review of the decision of the appeal registrar to extend the time to obtain and file the transcript of the primary hearing, in default of which the final appeal hearing proceeds without it – Where the appellant asserts a lack of financial capacity to acquire the transcript – Where there are no exceptional circumstances to justify the Court funding the provision of the transcript – Time for the appellant to file the transcript further extended – Review application dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.19, 13.22
Cases cited: Peake & Cousins(No 2) [2019] FamCAFC 95 Number of paragraphs: 20 Date of hearing: 6 February 2025 Place: Newcastle The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 318 of 2024
MLC 14605 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BRAUNER
Appellant
AND: MR BRAUNER
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
6 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The time for the appellant’s compliance with Order 4 made on 21 January 2025 is extended to 4.30 pm AEDT on Friday 14 February 2025 and, in default, the operation of r 13.19(4) and r 13.22(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) is suspended and the appeal must be prosecuted without transcript.
2.Otherwise, the Application in an Appeal filed on 3 February 2025 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
These reasons explain the dismissal of the appellant’s Application in an Appeal, filed on 3 February 2025, seeking the review of procedural orders made by the appeal registrar (“the registrar”) on 21 January 2025.
Background
On 8 November 2024, orders were made between the parties in respect of their children under Pt VII of the Family Law Act 1975 (Cth) by a judge of the Federal Circuit and Family Court of Australia (Division 1).
The appellant appealed from those orders on 25 November 2024 and the appeal has since been listed for hearing before the Full Court on 7 March 2025.
On 6 December 2024, the appellant filed an Application in an Appeal seeking that her obligation to meet the cost of procuring transcript for six days of proceedings be waived, even though the trial was conducted by the primary judge over only four days. Nevertheless, the cost of the transcript is estimated to exceed $10,000. The appellant deposed in her supporting affidavits to her lack of financial resources to cover the cost of the transcript, given her status as a disability pensioner and her lack of savings.
On 10 January 2025, the registrar heard the appellant’s application, but reserved judgment in respect of it. In the meantime, the registrar ordered the appellant to file and serve the transcript of the trial by 31 January 2025 in readiness for the appeal hearing.
The registrar made fresh orders on 21 January 2025 to determine the appellant’s Application in an Appeal. The relevant orders as to transcript made on 10 January 2025 were discharged (Order 1). Instead, the registrar dispensed with the need for the appellant to file any transcript but granted her an extension of time up until 7 February 2025 to file transcript if she wishes to acquire it (Orders 3 and 4). The appeal will be conducted in the absence of transcript if the appellant does not acquire it.
The appellant filed an Application in an Appeal on 3 February 2025, reviewing the registrar’s decision embodied in those orders, in support of which she relied upon her two affidavits filed on 6 December 2024 and 3 February 2025.
This review hearing entails an original decision as to whether the appellant should be relieved in some way from the ordinary burden of procuring and filing the trial transcript in the appeal. The appellant need not demonstrate error made by the registrar, as she mistakenly thought was necessary. Her criticisms of the registrar are therefore disregarded.
Despite the inelegant form of relief sought by the appellant, it may be taken that she wants to rely upon the trial transcript in the appeal hearing, she asserts a lack of financial capacity to acquire it, and she wants the Court to incur the cost of procuring the transcript for her.
Legal principles
The following observations in Peake & Cousins(No 2) [2019] FamCAFC 95 are apposite to the appellant’s application to shift the burden of procuring the transcript to the Court:
17.Despite some past reservations about this Court’s power to order the provision of transcript for a party (WJD & TEK (1998) 72 ALJR 1323; Forbes & Bream (2008) 222 FLR 96 at [30]–[34]), the Court has proceeded on the basis that it will do so in exceptional cases (Forbes & Bream at [35]–[36]). The considerations which will influence whether such an order might be made in the exercise of discretion have been identified and include (see Sampson &Hartnett (Provision of [2010] FamCAFC 220 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;
(e)The prima facie merit of the appeal; and
(f)Whether the Full Court hearing the appeal should make the decision about transcript.
(As per the original)
Those principles are applied presently.
Disposition
The appealed orders are parenting orders and marginalise the appellant’s involvement in the children’s lives because she has been divested of any parental responsibility for the children, who will only spend supervised time with her intermittently. Undoubtedly, the appellant is very disappointed by that outcome.
Even though the appellant told the registrar she “may have the means to obtain finance to pay for the transcript” (at [16]), she did not make that same concession in this hearing. The evidence adduced in her two affidavits strongly suggests she has no financial capacity to acquire the transcript.
Attention therefore necessarily turns to whether the transcript is integral to the appeal, the prima facie merit of the appeal, and the proportionality of the cost.
In summary, the grounds of appeal allege the primary judge:
(a)wilfully misapplied evidence in an attempt to justify his Honour’s finding of the appellant’s psychiatric ill-health (Ground 1);
(b)wilfully ignored the appellant’s objection to evidence adduced by the respondent (Ground 2); and
(c)intentionally misrepresented the facts, was biased against the appellant, and favoured the respondent (Grounds 3, 4 and 5);
The appellant was represented by counsel for three of the four hearing days. No application was made to disqualify the primary judge during the trial, which is a significant bulwark to the appellant making good on her complaints in the appeal about his Honour’s bias and misconduct during the trial.
By reference to the grounds of appeal, the whole of the transcript does not seem integral to the appeal, though some parts of it may be. To the extent the appellant envisages reliance on transcript to try and vindicate her points, she did not narrow the scope of the transcript references to particular days, let alone particular times. The overall cost of the transcript is likely to be disproportionate to the extent of its use in the appeal.
Presently, the appeal does not afford an obvious basis for much confidence in its prospects.
The exceptional circumstances required to justify the Court paying for transcript for the appellant’s benefit are therefore not established. The Court will not incur such cost. However, the time for the appellant to file transcript will be extended to 14 February 2025, to give her every chance to acquire it. If the transcript is not filed by that date, the appellant must prosecute the appeal without it. She will be relieved of the consequences of r 13.19(4) and r 13.22(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Her application is otherwise dismissed.
No question of costs arises because both parties were self-represented.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 7 February 2025
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