Sofia & Treacy

Case [2024] FedCFamC1A 209

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Sofia & Treacy [2024] FedCFamC1A 209

Appeal from: Sofia & Treacy (No 2) [2024] FedCFamC1F 147
Appeal number: NAA 190 of 2024
File number: MLC 13024 of 2020
Judgment of: AUSTIN J
Date of judgment: 8 November 2024
Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time to file the transcript and Summary of Argument and an adjournment of the appeal hearing – Where only few of the grounds of the appeal rely on the transcript – Order made to extend the time for the appellant to file the transcript and the Summary of Argument – Order made relieving the appellant of the deemed abandonment of the appeal if they fail to file the transcript – Where the application for an adjournment of the final appeal hearing is refused.
Legislation:

Family Law Act 1975 (Cth) Pt VII, s 65C

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67

Number of paragraphs: 18
Date of hearing: 8 November 2024
Place: Newcastle (via MS Teams)
The Appellant: Litigant in person
Solicitor Advocate for the Respondent: Mr Capkovic
Solicitor for the Respondent: Russell Kennedy Lawyers
Solicitor Advocate for the Independent Children's Lawyer: Ms Badenoch
Solicitor for the Independent Children's Lawyer: Culshaw Miller Badenoch Lawyers

ORDERS

NAA 190 of 2024
MLC 13024 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

SOFIA

Appellant
AND:

MS TREACY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

8 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The time for the appellant’s compliance with:

(a)Order 2 made on 23 October 2024 is extended to 2 December 2024 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; and

(b)Order 6 made on 23 October 2024 is extended to 2 December 2024.

2.Otherwise, the Application in an Appeal filed on 28 October 2024 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 the pseudonym Sofia & Treacy has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

  1. These reasons explain the disposition of the appellant’s applications for an extension of time to obtain and file the trial transcript, an extension of time within which the parties may file their Summaries of Argument and, hence, the…

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AGLC
Sofia & Treacy [2024] FedCFamC1A 209
Case
[2024] FedCFamC1A 209
Decision Date

CaseChat Overview and Summary

Sofia, the appellant, and Treacy, the respondent, were involved in a family law case adjudicated by the Federal Circuit and Family Court of Australia (Division 1). The matter pertained to the care, welfare, and development of a child, where the appellant sought to establish her parental rights against the respondent. The court ruled against the appellant, dismissing her parenting application and awarding sole parental responsibility to the respondent. The appellant subsequently filed an appeal against the primary judge’s decision, seeking an extension of time to file the trial transcript and Summary of Argument and an adjournment of the appeal hearing.

The court was required to decide whether to grant the appellant’s application for an extension of time to file the trial transcript and Summary of Argument and to adjourn the appeal hearing. The appellant argued that she faced financial and socio-legal disadvantages, including being an LGBTQI+ parent, which impeded her ability to purchase the trial transcript. She also noted that she had applied for legal assistance from the Office of the Attorney-General Commonwealth but had not yet received a response. Additionally, the Independent Children’s Lawyer (ICL) had initially indicated a willingness to apply for transcript funding from Victoria Legal Aid but later declined to do so, leaving the appellant to seek independent funding.

The court considered the appellant’s financial and socio-legal disadvantages, the lack of legal representation throughout the proceedings, and the significant cost of obtaining the trial transcript. The court noted that the appellant had applied for legal assistance but had not yet received a response. Although the appellant had conducted the trial without legal representation and still found the law to be "unknowable and inaccessible," the court did not find it likely that an adjournment would improve her legal knowledge. The court also considered the appellant's expectation of ex gratia funding but found no evidence of an alternative plan if such funding was not granted. The court concluded that the application for an adjournment was not warranted and granted the application for an extension of time to file the trial transcript and Summary of Argument.

The court ordered that the time for the appellant to comply with Order 2 and Order 6 be extended to 2 December 2024. In default of filing the trial transcript, 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) would be suspended, and the appeal would proceed without the transcript. The application for an adjournment of the appeal hearing was dismissed. The form of the order is subject to the entry in the Court’s records.

Orders

Orders of the court

NAA 190 of 2024

MLC 13024 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

SOFIA

Appellant

AND:

MS TREACY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

8 NOVEMBER 2024

THE COURT ORDERS THAT:

1. The time for the appellant’s compliance with:

(a) Order 2 made on 23 October 2024 is extended to 2 December 2024 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; and

(b) Order 6 made on 23 October 2024 is extended to 2 December 2024.

2. Otherwise, the Application in an Appeal filed on 28 October 2024 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 disposition of the appellant’s applications for an extension of time to obtain and file the trial transcript, an extension of time within which the parties may file their Summaries of Argument and, hence, the concomitant adjournment of the appeal hearing currently fixed for 13 December 2024.Background On 25 June 2024, a judge of the Federal Circuit and Family Court of Australia (Division 1) pronounced judgment between the appellant and the respondent in proceedings brought under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of the respondent’s child. Nearly two years before, on 14 October 2022, another judge declared the appellant was not the parent of the child, so the primary judge continued to entertain the proceedings on the premise the appellant was a person concerned with the care, welfare and development of the child and thereby enjoyed standing under s 65C(c) of the Act. Following a trial, the primary judge dismissed the appellant’s parenting application and made orders for the child to live with the respondent, who would hold sole parental responsibility for him. Any appeal from those orders ought to have been filed by 23 July 2024, but none was. The next day, the appellant sought an extension of time within which to appeal, which application the appeal registrar granted on 11 September 2024. As directed, the appellant filed the Notice of Appeal on 16 September 2024. The appeal registrar then held a procedural hearing on 23 October 2024, when the appeal was fixed for hearing on 13 December 2024. The appellant was directed to file transcript of the trial by 31 October 2024 (Order 2) and the Summary of Argument and List of Authorities by 21 November 2024 (Order 6). The respondent and the Independent Children’s Lawyer (“the ICL”) were given until 10 December 2024 to file their respective Summaries of Argument and Lists of Authorities (Order 7). On 28 October 2024, the appellant filed an Application in an Appeal seeking these orders:1.That the appellant be granted an extension of time in which to file the required transcripts at a date to be fixed by the Court (being after the 25th November)2.That the due date for filing of documents by all parties be amended accordingly to dates set by the Court.3.That the date for listed substantive appeal hearing on 13 December 2024 be adjourned to the subsequent sitting dates to allow for any amended filing dates, and for prospective counsel for the appellant (pending funding approval) to familiarise themselves with the case files before the substantive hearing and make submissions which may further assist the Court.4.Any other orders considered by the Court to be appropriate to the facts and given the circumstances outlined. In support of the application, the appellant relied upon the affidavit filed on 28 October 2024, which relevantly says this:3.Due to severe financial and socio-legal disadvantage as an LGBTQI+ parent / person (as well as other factors outlined below) I am not in a position to purchase the relevant transcripts (estimated cost $15,000-$20,000) directly.…6.In my experience of the legal system since filing for urgent parenting orders on 27.11.20, the law has been both unknowable an inaccessible, contrary to the Rule of Law.7.On 22 August 2024, during the procedural hearing, I informed the Court that I had, on 15 August 2024 applies for a grant of legal assistance [“GOA”] from the Office of the Attorney-General Commonwealth, [“AG” under both statutory and non-statutory schemes, being; a) under the Australian Human Rights Commission Act 1986 (Cth) b) Under the Special Circumstances category and c) under the Public Interest / Test Case Scheme [see Annexure marked as “AATS-02” Extract (Statutory Declaration) of [the appellants’] Application for a GOA To the AG (Cth) of 15.08.24].…11.On 23 August 2024, at the directions hearing before [the appeals registrar], the Independent Children’s Lawyer…stated that she could apply for transcript funding from Victoria Legal Aid [“VLA”] and has since confirmed funding for her substantive involvement in this appeal from VLA. However, I received an email from the ICL’s assistant after that hearing in which it was apparent that [the ICL] had later changed her mind, stating that ICL would not be applying for transcript funding from VLA and that I was now to apply independently [see Annexure marked as “AATS-03” Email from CMB Legal to [the appellant] re VLA Transcript Funding].(Emphasis in original)Disposition

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

In support of the application, the appellant relied upon the affidavit filed on 28 October 2024, which relevantly says this:3.Due to severe financial and socio-legal disadvantage as an LGBTQI+ parent / person (as well as other factors outlined below) I am not in a position to purchase the relevant transcripts (estimated cost $15,000-$20,000) directly.…6.In my experience of the legal system since filing for urgent parenting orders on 27.11.20, the law has been both unknowable an inaccessible, contrary to the Rule of Law.7.On 22 August 2024, during the procedural hearing, I informed the Court that I had, on 15 August 2024 applies for a grant of legal assistance [“GOA”] from the Office of the Attorney-General Commonwealth, [“AG” under both statutory and non-statutory schemes, being; a) under the Australian Human Rights Commission Act 1986 (Cth) b) Under the Special Circumstances category and c) under the Public Interest / Test Case Scheme [see Annexure marked as “AATS-02” Extract (Statutory Declaration) of [the appellants’] Application for a GOA To the AG (Cth) of 15.08.24].…11.On 23 August 2024, at the directions hearing before [the appeals registrar], the Independent Children’s Lawyer…stated that she could apply for transcript funding from Victoria Legal Aid [“VLA”] and has since confirmed funding for her substantive involvement in this appeal from VLA. However, I received an email from the ICL’s assistant after that hearing in which it was apparent that [the ICL] had later changed her mind, stating that ICL would not be applying for transcript funding from VLA and that I was now to apply independently [see Annexure marked as “AATS-03” Email from CMB Legal to [the appellant] re VLA Transcript Funding].(Emphasis in original)Disposition Numerous unassailable facts arise from the appellant’s evidence and the Court record. The appeal relates to a child who has no memory of the appellant, as he has not seen the appellant since January 2020, when he was only about six months of age. The appellant commenced the original proceedings against the respondent in November 2020 and conducted the trial without legal representation over several days between December 2023 and April 2024. The appellant then commenced this appeal without legal representation. Despite acting without legal representation over all those years, the appellant still finds the law to be “both unknowable and inaccessible”, so it is unlikely the appellant’s legal knowledge will be improved by an adjournment of the appeal hearing. The appellant is without means and cannot afford the trial transcript. The appellant expects some form of ex gratia funding to obtain the transcript but has no alternative plan if such financial assistance is refused. On 15 August 2024, nearly two months after judgment was delivered at first instance, the appellant applied to the Attorney-General for legal assistance in the appeal, but no response to the application is expected until mid-November 2024. Although the evidence does not reveal it, the application made to the Attorney is presumably for funding to cover the cost of the trial transcript rather than to fund the appellant’s legal representation. There is no evidence the appellant has applied for an orthodox grant of legal aid to a State legal aid agency to cover the cost of legal representation. By 23 August 2024, the appellant knew the ICL refused to bear the cost of the trial transcript. The ICL’s initial willingness to consider the prospect of her doing so and her subsequent realisation she could not, cannot now be characterised as a recant to justify the current application.