Brauner & Brauner - [2025] FedCFamC1A 15

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 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
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 JUDGMENT
AUSTIN 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brauner & Brauner

Details

AGLC: Brauner & Brauner [2025] FedCFamC1A 15
Case: [2025] FedCFamC1A 15
Decision Date: 6 February 2025

CaseChat Overview and Summary

The case involves an appeal by Ms. Brauner against orders made by a judge of the Federal Circuit and Family Court of Australia concerning their children. The appeal has been listed for hearing before the Full Court, but Ms. Brauner has filed an application in the appeal seeking a review of the registrar's decision not to waive her obligation to procure and file a transcript of the primary hearing. Ms. Brauner argues that she lacks the financial means to acquire the transcript and requests the Court to fund the provision of the transcript for her. The Full Court dismissed Ms. Brauner’s application, and further extended the time for her to file the transcript.

Ms. Brauner’s application raised a number of legal issues, including whether the Court has the power to order the provision of a transcript for a party, and if so, what considerations should be taken into account in exercising that discretion. The Court considered the nature of the case, whether the transcript is integral to the appeal, the appellant’s ability to defray any part of the transcript cost, the proportional cost of the transcript to the anticipated cost of the appeal, the prima facie merit of the appeal, and whether the Full Court should make the decision about the transcript. The Court held that the appellant did not demonstrate exceptional circumstances that would justify the Court funding the provision of the transcript.

The Court further held that the appellant need not demonstrate error made by the registrar to obtain relief. The Court dismissed Ms. Brauner’s application, and further extended the time for her to file the transcript. The appeal will proceed without the transcript if the appellant does not acquire it by the extended time. The Court also ordered that in default of the appellant’s compliance with the extended time, the operation of certain rules is suspended and the appeal must be prosecuted without transcript.

Orders

Orders of the court

NAA 318 of 2024

MLC 14605 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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).

Background

Background to the litigation

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)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 318 of 2024 MLC 14605 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS BRAUNER Appellant
AND:	MR BRAUNER Respondent

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

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	6 FEBRUARY 2025