Langley & Tarelli (No 4)

[2023] FedCFamC1A 151

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Langley & Tarelli (No 4) [2023] FedCFamC1A 151

Appeal from:	Tarelli & Langley [2023] FedCFamC1F 386
Appeal number(s):	NAA 160 of 2023
File number(s):	PAC 4311 of 2014
Judgment of:	HARPER J
Date of judgment:	5 September 2023
Catchwords:	FAMILY LAW – APPLICATION IN AN APPEAL – Where appellant sought that the Court provide the transcript of the proceedings before the primary judge, variation of procedural orders and for the appeal listing to be vacated – Where unusual circumstances may require the Court to provide the transcript – Where formal orders with respect of the provision of the transcript cannot be presently made – Listing of the appeal vacated – Application otherwise dismissed.
Legislation:	Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Number of paragraphs:	17
Date of hearing:	5 September 2023
Place:	Heard in Sydney (via video-link)
The Appellant:	Litigant in person
Solicitor for the Respondent:	F.W. Ewart & Ewart
Solicitor for the ICL:	Legal Aid, NSW

ORDERS

NAA 160 of 2023
PAC 4311 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS LANGLEY

Appellant

AND:

MR TARELLI

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HARPER J
DATE OF ORDER:	5 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.By no later than close of Registry filing on 13 September 2023, the appellant file and serve an Amended Notice of Appeal.

2.The listing for hearing of the appeal on 26 September 2023 be vacated.

3.The appeal be stood over before an Appeal Judicial Registrar on a date to be advised.

4.By no later than 4.00 pm on the day before the next listing before an Appeal Judicial Registrar, the appellant file and serve written submissions of no more than two pages specifying in respect of which grounds of appeal she contends the transcript of the proceedings below is necessary, by reference to specific dates upon which the primary proceedings took place.

THE COURT FURTHER ORDERS IN CHAMBERS THAT:

5.The Application in an Appeal filed on 28 August 2023 be otherwise dismissed.

THE COURT NOTES THAT:

A.The Appeal Judicial Registrar may give consideration to making further procedural orders in relation to the provision of the transcript after the appellant’s compliance with these orders.

B.In the event there is non-compliance with any of these orders by the appellant, the Appeal Judicial Registrar may consider making orders for dismissal of the appeal.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Langley & Tarelli has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

HARPER J:

1. In appeal number NAA160 of 2030, the appellant filed a Notice of Appeal on 15 June 2023, appealing orders made by a primary judge in the Federal Circuit and Family Court of Australia (Division 1) on 18 May 2023. The existing notice of appeal specifies seven grounds which it is unnecessary to set out in detail for the purpose of this brief judgment. The appeal is listed for hearing on 26 September 2023. 

2. On 9 August 2023, the Eastern Judicial Appeal Registrar made a range of procedural orders for preparation of the appeal, which are, broadly speaking, orders routinely made in the appellate jurisdiction of this Court.

3. They include orders for the preparation of a digital appeal book and impose upon the appellant an obligation to serve a digital transcript of the proceedings before the primary judge. I note here that those proceedings took place on 25, 27 and 28 July 2022, 13, 14, 15 and 16 September 2022, 18 and 19 April 2023. Accordingly, there will be some nine days of transcript required.  On 28 August 2023, the appellant filed an Application in an Appeal which sought three orders, as follows:

   1. That the Federal Circuit and Family Court of Australia provide transcription of the hearing before [the primary judge] on 25 & 28 July 2022, 13, 14, 15 & 16 September 2022 and 18 April 2023.

   2. That the Court vary the Orders made by Appeal Judicial Registrar [...] on 9 August 2023.

   3. That the hearing of the appeal listed on 26 September be vacated.

4. In support of her application, the appellant filed an affidavit in which she gave evidence that she had already spent a considerable amount of money on obtaining parts of transcripts of some days and has required the financial support of her mother in order to do so. She also gave evidence which referred, with some lack of clarity, to the necessity to include further documents in an appeal book. She also supported her application to vacate the hearing of the appeal listed on 26 September 2023 by reference to the state of her health, claiming that she has a range of medical ailments, including “[virus]”, sore throat, unwanted side effects of prescription medication, eye conditions and general lethargy and feelings of being “lacklustre”.

5. In support of these medical grounds, she exhibited a report from a Dr G dated 18 August 2023, in which he stated that, by reference to those symptoms, causing extreme fatigue, lack of energy and distress, he believed the appellant:

   …is unable to attend to various formal Court requirements scheduled to be completed up to and including 30 August 2023.

   (Mother’s affidavit filed 28 August 2023, Annexure J p.43)

6. Dr G went on to state:

   … I will review [the mother] over the next two to three weeks to ascertain whether, on health grounds, she will then be fit to complete the Court requirements.

   (Mother’s affidavit filed 28 August 2023, Annexure J p.43)

7. The attitude of the respondent father to the application was that he neither supported nor opposed it.

8. In submissions, the Court questioned the appellant concerning the necessity of the transcript by reference to her existing grounds of appeal. It emerged during the course of the discussion that it is primarily in relation to Ground 6 that the transcript of at least some part of the trial before the primary judge will be necessary. However, the appellant also informed the Court that she is proposing to file an Amended Notice of Appeal which would make further reference to the transcript necessary.

9. In relation to the provision of the transcript, the Independent Children’s Lawyer (“ICL”) frankly conceded to the Court that, in her view, it will be necessary for the entire transcript to be available in order for all issues raised, both by the existing grounds of appeal and any additional grounds of appeal, to be properly considered and determined by the Full Court. She also frankly conceded that in the event the Court made an order for the transcript to be provided at the cost of the Court, and even if that did not happen, it would not be possible for the transcript to be available in time for the hearing of the appeal on 26 September 2023.

10. It is most unusual for the Court to make an order which would cause it to bear the cost of providing a transcript for the hearing of an appeal, even in circumstances where the appellant gives evidence of impecuniosity leading to an inability to obtain the transcript themselves.  However, in the circumstances of this case, there is a compelling reason given in combination between the submissions of the appellant and the ICL which supports a conclusion that the transcript of the proceedings will be necessary. 

11. On the question of any adjournment, irrespective of the precise grounds, it is necessary for the Court to have regard to the overarching purpose set out in s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), which amongst other things imposes a duty to give serious consideration to claims of other litigants in the Court and the appropriate and expeditious allocation of judicial resources for the determination of any proceedings, including appeals.

12. I note in passing here that the appellant sought procedural orders for a range of contested documents to be included in the digital appeal book. However, I am not persuaded any orders are necessary in that regard by reason of the existence of Order 5 made on 9 August 2023.  Accordingly, I am not disposed to make any orders in relation to contested documents to be included in the digital appeal book.

13. I am also not persuaded by the evidence upon which the appellant relies in relation to medical ailments as constituting a sufficient ground to justify vacating the listing on 26 September 2023. 

14. Accordingly, that leaves the vexed issue of the transcript. In circumstances where the ICL supports the inclusion of the transcript in the appeal book, and in circumstances where the appellant has given evidence that she has exhausted her resources which may be available to obtain the transcript, I am reluctantly persuaded that orders should be made for that eventually to take place. 

15. However, it seems to me that before any such orders can be formalised, it is essential for the appellant to refine her grounds of appeal, if that is what she proposes to do, by the filing of an Amended Notice of Appeal.

16. It seems also, in the circumstances, that for practical reasons, it will not be possible for the appeal to proceed on 26 September 2023.

17. Accordingly, I propose to make orders for the filing and service of an Amended Notice of Appeal within seven days, to vacate the listing on 26 September, and then for the matter to be listed before the appeal judicial registrar on a date to be advised, and for the appellant to file and serve written submissions specifying precisely what grounds of appeal, which may be included in an Amended Notice of Appeal, require a reference to the transcript and what days of the transcript precisely that reference should be.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Harper.

Associate:

Dated:       7 September 2023