Sofia & Treacy
[2024] FedCFamC1A 209
•8 November 2024
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 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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 JUDGMENTAUSTIN J:
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
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.
The litigation at first instance occupied well over three years and the parties have now had their trial. This is an appeal, so the appellant must demonstrate appealable error to succeed and this Court is obliged to dispose of the appeal as quickly, inexpensively and efficiently as possible (s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
The appellant does not believe the appeal can be determined fairly until the trial transcript is procured at someone else’s expense. But that may never happen. The Attorney may decline the appellant’s request for financial assistance. Applications such as these, which have the effect of delaying the proceedings, must be determined fairly to all parties, not just in the way one party individually perceives to be fair. Neither the respondent nor the ICL consider it is fair for the appeal hearing to be delayed until someone else acquires the transcript for the appellant. They press for the appeal hearing on 13 December 2024 to be maintained. Not unreasonably, they contend the appellant should be expected to prosecute the appeal swiftly, so the respondent and the child can either get on with their lives free of the litigation if the appeal fails or, if the appeal succeeds, quickly get on with the re-hearing.
Few of the 30 grounds of appeal appear to rely upon the availability of the trial transcript (Grounds 3, 9, 11 and 22). Most of the grounds appear to complain of legal and factual errors which ought to be evident (or not) from comparison between the material contained within the appeal book and the reasons for judgment.
On balance, insufficient cause is shown by the appellant to vacate the hearing of the appeal and push it back into the new year. The appellant would not be any better off for the adjournment if the Attorney refuses financial assistance and, on the evidence currently available, there is no reason to suspect that such financial assistance will be granted. The premise of the appellant’s application to the Attorney for financial assistance is that the appeal is supposedly of “public interest”, but the appeal does not obviously attract that description. Although the appellant identifies as a non-binary person, such fluid status was not evidently pertinent to the primary judge’s decision in respect of the child.
However, refusal of the adjournment application is not to say some latitude cannot be extended to the appellant in another way. The appellant anticipates being able to file the transcript by 25 November 2024 if successful in securing financial assistance. Without causing prejudice to the respondent or the ICL, an extension of time can be granted to the appellant to file the trial transcript beyond that date and, if the appellant does not do so within the extended time, be relieved of the consequent deemed abandonment of the appeal. Though, in that event, the appellant will have to prosecute the appeal without the benefit of the transcript, which may require the appellant to revise the nature and number of the grounds of appeal to be prosecuted. The appellant can also be granted an extension of time within which to file the Summary of Argument and List of Authorities.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 11 November 2024
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