Byquist & Ieri
[2024] FedCFamC1A 167
•19 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Byquist & Ieri [2024] FedCFamC1A 167
Appeal from: Ieri & Byquist [2024] FedCFamC1F 436 Appeal number: NAA 197 of 2024 File number: BRC 13092 of 2022 Judgment of: SCHONELL J Date of judgment: 19 September 2024 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of transcript – Where the appellant seeks to be relieved from the obligation to obtain the transcript – Where the appellant’s evidence seeks to establish she cannot afford the transcript – Where the transcript is not required for the appeal – Where there are no exceptional circumstances to justify the Court funding the provision of the transcript – Appellant relieved of obligation to provide the transcript – Application otherwise dismissed. Cases cited: Peake & Cousins (No. 2) [2019] FamCAFC 95 Number of paragraphs: 14 Date of hearing: 19 September 2024 Place: Sydney, via video link The Appellant: Self represented litigant Solicitor for the Respondent: RedHill Legal ORDERS
NAA 197 of 2024
BRC 13092 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BYQUIST
Appellant
AND: MR IERI
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
19 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Orders 5–9 made by the Appeal Judicial Registrar on 4 September 2024 are discharged such that the appeal will proceed in the absence of a transcript.
2.The Application in an Appeal filed by the appellant on 11 September 2024 is otherwise 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).
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 Byquist & Ieri has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
On 26 July 2024, the appellant mother (“the appellant”) filed a Notice of Appeal against parenting orders made by the primary judge on 28 June 2024.
Pursuant to orders made by a Judicial Registrar on 4 September 2024, the appellant was ordered to file on or before 4.00 pm on 20 September 2024 an electronic transcript. By Application in an Appeal filed 11 September 2024, the appellant seeks to be relieved from the obligation to obtain the transcript.
The respondent father (“the respondent”) filed and served a Response to the Application and an affidavit yesterday, 18 September 2024. In circumstances where the appellant indicated that she had not seen the documents, where the matter proceeded by Microsoft Teams audiovisual link, where the appellant is in Country N, and she advises there is an eight-hour time difference, I determined that the matter would proceed in the absence of the respondent’s affidavit but would record that he opposed the application.
Thereafter the appellant and the respondent’s solicitor each made brief submissions.
The appellant’s affidavit in support identifies that the cost of the transcript is estimated to be between $1,800 and $2,415. The appellant says that to obtain the transcript would impose a financial burden upon her. In her affidavit, she says she is earning a salary but that it is only sufficient to cover her day-to-day living expenses and that:
13.…having to obtain the electronic transcript would put me in a position that would make it completely infeasible for me to proceed further with the appeal proceedings and would deprive me from having an equal opportunity to defend my rights to carry through with the appeal process and being heard at the appeal hearing for 31 October 2024.
The Notice of Appeal identifies four grounds of appeal, namely, “absence of procedural fairness, absence of making orders to serve the child’s very best interests, absence of findings, and false or inconsistent findings…”. After recitation of those four grounds appear over 15 pages of what is presumed to be argument in support.
In circumstances where the appellant is unrepresented and her Notice of Appeal and Application in an Appeal have been prepared without the benefit of legal assistance, I will also consider whether the Court should provide the transcript.
As to the application as presented and argued, it is ultimately a matter for the appellant if she wishes to proceed in the absence of a transcript. It is her appeal, and it is for the appellant to demonstrate error. On one view, if the appellant does not seek it, then so be it.
That said, one of the grounds contends a denial of procedural fairness which in some circumstances may be informed by what is recorded in the transcript. I now turn to consider whether the Court should provide the transcript. In that respect in Peake & Cousins (No. 2) [2019] FamCAFC 95 Austin J observed as follows:
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.
Having regard to the above matters, it is clear that the appeal is from child-related proceedings. The proceedings were heard on one day, proceeded entirely upon the papers with no cross examination and on submissions. In those circumstances, it is difficult to apprehend how any part of the transcript could be integral to the appeal. The appellant contends that she is unable to meet the costs of the transcript but beyond the bald assertion provides no evidence as to her income or asset position. In the absence of any Summary of Argument, it is difficult to be determinative about the merits of the appeal.
The Notice of Appeal appended some 15 pages of argument in support of the grounds. In relation to the ground contending a denial of procedural fairness, the appellant asserts the primary judge:
“… allowed significantly less opportunities for me to make oral submissions, than it did to the applicant father and his legal representatives. Nevertheless, the Honourable Judge requested me to make written submissions regarding my case, which requirement I met every time”.
(Notice of Appeal filed 26 July 2024, paragraph 1)
It is not immediately apparent how that could give rise to a denial of procedural fairness where the primary judge permitted the appellant to make written submissions, which she says she complied with. Under the rubric of procedural fairness, the appellant makes a general complaint that had the “Honourable Judge of First Instance practiced procedural fairness through which the very best interests (sic) of the child is served” (Notice of Appeal filed 26 July 2024, paragraph 2) proceeding thereafter to identify a number of instances where it is contended that the primary judge had regard to parts of the evidence in his ultimate determination. Again, it is not immediately apparent how provision of the transcript would aid in the prosecution of that aspect of the appeal as the argument, when properly analysed, is really directed to what weight the primary judge placed on evidence. The Notice of Appeal, also within the rubric of procedural fairness, contended that the primary judge’s judgment display “the honourable Judge being biased towards the father” (Notice of Appeal filed 26 July 2024, paragraph 9). In that circumstance, the transcript will not elucidate the error.
I am not satisfied the appellant has demonstrated, making due allowance for the fact that the appellant is not a lawyer, that the circumstances bare the hallmark of exceptionality such that the Court should meet the cost of the transcript or that the appeal cannot be prosecuted without a transcript.
Accordingly, I will grant the appellant’s application dispensing with the requirement for a transcript.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 19 September 2024
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