STEGE & STEGE
[2018] FamCAFC 31
•12 February 2018
FAMILY COURT OF AUSTRALIA
| STEGE & STEGE | [2018] FamCAFC 31 |
| FAMILY LAW – APPEALS – Multiple appeals brought on for hearing – Five of the appeals relating to interim or interlocutory orders in financial and parenting proceedings futile – Appellant agreed to discontinue these appeals without prejudice to his remaining appeals and the ground of bias – Appellant granted leave to discontinue appeals or application for leave to appeal in five of the seven appeals. FAMILY LAW – APPEAL – Application for reinstatement of appeal – Failure to provide draft appeal book index within time – Already a properly constituted appeal against the property settlement matters – Appropriate for the entire property issue to be considered by the Full Court – Not a significant delay in filing the draft appeal book index – Not possible to say that the appeal is entirely without merit – Jackamarra v Krakouer (1998) 195 CLR 516 considered – No prejudice to the respondent – Appeal reinstated – Consolidated with remaining appeal. FAMILY LAW – PROVISION OF TRANSCRIPT – Oral application – Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 considered – Appeals relate only to financial matters – Appeals can proceed in part even if no transcript is provided – Transcript likely to be expensive – Appellant would have difficulty affording the transcript – Proportionality of the cost of the transcript to appellant’s anticipated costs of the appeals considered – Oral application for provision of transcript dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Finch & Shibo (No. 2) [2016] FamCAFC 108 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220 |
| APPELLANT: | Mr Stege |
| RESPONDENT: | Ms Stege |
| FILE NUMBER: | PTW | 5569 | of | 2011 |
| APPEAL NUMBERS: | WA | 2 | of | 2017 |
| WA | 5L | of | 2017 | |
| WA | 6L | of | 2017 | |
| WA | 24L | of | 2017 | |
| WA | 29 | of | 2017 | |
| WA | 32 | of | 2017 | |
| WA | 35 | of | 2017 |
| DATE DELIVERED: | 12 February 2018 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | 12 February 2018 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATES: | 2 June 2016 |
| 9 August 2017 |
| LOWER COURT MNCS: | [2016] FCWA 33 |
| [2017] FCWA 102 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | No appearance |
Orders
The appellant be granted leave to discontinue appeals or applications for leave to appeal in proceedings numbered WA 2 of 2017, WA 5L of 2017, WA 6L of 2017, WA 24L of 2017 and WA 35 of 2017.
Appeal WA 29 of 2017 be reinstated.
The application in an appeal filed 8 November 2017 be otherwise dismissed.
The Family Court of Western Australia’s Audio Visual Officer is requested to obtain and provide to the appellant free of charge an audio recording of the trial before the Honourable Justice Duncanson heard on 2, 3, 4 of March 2016 and 27 March 2017.
The appellant be restrained by injunction from dealing with the audio recording when received other than for the purposes of obtaining legal advice.
The oral application for the provision of transcript be dismissed.
Appeals WA 29 of 2017 and WA 32 of 2017 be consolidated and heard together.
On or before 12 March 2018 the appellant file and serve an Amended Notice of Appeal, in one document, setting out his grounds of appeal against the orders made by the Honourable Justice Duncanson on 9 August 2017 and 12 September 2017.
That the appellant be responsible for the preparation of the appeal books.
If practicable, the appellant obtain the transcript of the trial and provide an electronic copy to the respondent on or before 19 March 2018.
In the event that the appellant is unable to afford the cost of transcript, the appeal hearing proceed without transcript.
The appeal papers are to comprise each of the following documents arranged in the following order:
(a) the original Notices of Appeal;
(b)if available at the time of preparation of the appeal books, the Amended Notice of Appeal;
(c) the two orders appealed from;
(d) the trial judge’s reasons for judgment;
(e)each relevant application, affidavit and other document, in order of filing;
(f) a list of all exhibits; and
(g)any other documents before the Honourable Justice Duncanson that the appellant considers relevant to his appeal ground concerning bias.
On or before 19 March 2018 the appellant file in the Perth Appeal Registry five copies of the appeal books together with a certificate pursuant to Rule 22.22(2) of the Family Law Rules 2004, and serve one copy of the appeal books on the respondent together with a copy of the certificate.
Each party be at liberty to apply for any further directions to the Honourable Justice Thackray, or if not reasonably available, another Judge, upon five days’ notice in writing to the other party and to the Appeal Registrar.
If practicable, the appeal be included for hearing during the Perth sittings of the Full Court in the week commencing 9 April 2018. (In the event that it is not convenient to the Court for the matter to be included in those sittings, consideration will be given to listing the matter for hearing before the Full Court in Sydney.)
On or before 19 March 2018 the appellant file and serve a summary of argument and a list of authorities to be relied upon, if any.
In the event that she intends to participate in the appeal, on or before 3 April 2019 the respondent file and serve a summary of argument and a list of authorities to be relied upon, if any.
The Summary of Argument filed by each party must be prepared in accordance with Rule 22.22 of the Family Law Rules 2004 and Practice Direction No. 1 of 2017.
The List of Authorities filed by each party must be prepared in accordance with Attachment A to these orders and Practice Direction No. 1 of 2017.
The proceedings be otherwise adjourned.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stege & Stege has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Numbers: WA 2 of 2017, WA 5L of 2017, WA 6L of 2017, WA 24L of 2017, WA 29 of 2017, WA 32 of 2017 and WA 35 of 2017
File Number: PTW 5569 of 2011
| Mr Stege |
Appellant
And
| Ms Stege |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Listed before me today were seven appeals filed by Mr Stege (“the husband”) in proceedings that have been before the Family Court of Western Australia and, at the relevant times, dealt with by Duncanson J.
The first part of today’s hearing has largely been taken up with a consideration of the futility of five of the appeals which relate to interim or interlocutory orders made in financial proceedings and parenting proceedings between the husband and Ms Stege (“the wife”).
The husband has properly acknowledged, after some discussion with me, that there is no utility in those appeals being pursued. He has agreed that they should be discontinued on the basis that it is without prejudice to his right in the substantive property settlement appeal to assert that Duncanson J was biased. As I have explained today, the husband has an appeal ground relating to the alleged bias of her Honour and it is therefore open to him to seek to demonstrate that bias by reference to the entire circumstances.
This then leaves on foot in the Full Court of the Family Court of Australia only two appeals, WA 29 of 2017 and WA 32 of 2017, both of which relate to property settlement orders made by Duncanson J.
I note that there are also ongoing parenting proceedings in the Family Court of Western Australia, which were originally before Duncanson J. However, before those were completed, her Honour recused herself on the husband’s application.
I should also pause to note that at the commencement of today’s proceedings, the wife was called, but made no appearance. The reason behind her failure to attend no doubt arises from what she has said in an affidavit filed 25 January 2018, that has come to my attention on the first instance file. In summary, the wife says she is no longer capable of continuing to deal with the barrage of litigation that had been brought against her, including these seven appeals, and as a result she has elected not to participate further in the proceedings.
I need not comment on the impact of that in relation to the parenting matters. However, insofar as the appeals are concerned, her absence does not mean that the proceedings can go ahead undefended. It will still be necessary for the husband to persuade the Full Court of the Family Court of Australia to set aside her Honour’s orders by demonstrating there was appealable error made by the primary judge or the bias of the judge was such that the orders ought not stand.
It is against that background that I consider the two remaining appeals, but I will first provide a brief chronology relevant to the decision I must make.
Chronology
The property matter proceeded to trial over three days in March 2016 and a final day in March 2017 at which the parties were self-represented. Her Honour delivered her judgment on 9 August 2017, in which she proposed 17 orders finally resolving financial matters. But her Honour explained at [175] that she intended, by way of part-property settlement, for the wife to receive the sale proceeds of the Suburb B property and foreshadowed an injunction restraining the husband from dealing with his superannuation. The primary judge also proposed to make an order that would give the wife all of the husband’s superannuation entitlement, but before such an order was made it was first necessary for procedural fairness to be afforded to the trustee.
Ultimately, her Honour proposed only two orders and said the balance of the orders would be made after the superannuation trustee had been afforded procedural fairness. That is how the matter proceeded and accordingly, on 9 August 2017, her Honour made the two orders as foreshadowed.
On 1 September 2017, the husband filed an appeal against those orders (appeal WA 29 of 2017). I note that leave to appeal was not originally sought, but that is a separate issue.
On 5 September 2017, the Appeals Registrar wrote to the husband advising him that he was required to file his draft appeal book index by 29 September 2017. The letter explained that, under the Family Law Rules 2004, if the draft appeal book index was not filed in time, the appeal would automatically be deemed abandoned. The husband has today mentioned his concerns about how long it was taking at the time for correspondence from the Court to reach him and although I am unsure at what point he would have received that letter, it certainly would have been sometime after 5 September 2017.
The next relevant event occurred on 12 September 2017, when Duncanson J, in chambers, made the balance of the property orders presumably on the basis that the trustee had, by then, been afforded procedural fairness by being informed of the orders that her Honour intended to make.
Very importantly for the purposes of today’s proceedings, the orders of 12 September 2017 contain what might be described as the substantive property settlement orders, providing for the superannuation split, but also significantly for the husband to retain the property in Suburb A, leaving unaffected the earlier order for the wife to receive the proceeds of sale of the Suburb B property. The earlier orders were simply a holding injunction and an entitlement to receive said proceeds of sale.
On 20 September 2017, the husband appealed against the orders of 12 September 2017 (appeal WA 32 of 2017). That appeal was filed within time and remains properly on foot.
On 9 October 2017, the Appeals Registrar wrote to the husband advising him that the earlier appeal (WA 29 of 2017) had been deemed abandoned due to his failure to file a draft appeal book index. The next event was on 18 October 2017 when the husband sent his draft appeal book index to the Court with an apology for having overlooked the obligation to do so. Then, on 8 November 2017, the husband filed an Application in an Appeal in which he sought, inter alia, the reinstatement of his appeal. I note there has been some delay in having the application properly filed and in assigning the hearing date today.
Reinstatement of appeal WA 29 of 2017
In determining that it is appropriate that appeal WA 29 of 2017 be reinstated, I take into account a number of significant matters.
First, there is already on foot a properly constituted appeal against the majority of the property settlement matters that have been determined. Even if this part of the appeal were not permitted to proceed, there would still be an appeal before the Full Court dealing with property issues. In my view, it is appropriate that the entire issue be considered by the Full Court, rather than attempting to dissect the judge’s decision into its constituent parts.
The second matter that I take into account is that the delay in the filing of the draft index was not significant. This is also in circumstances where the husband was a self-represented litigant who was living in another state and who would therefore not have been receiving correspondence promptly.
I also take into account that the application seeking to reinstate the appeal was also made fairly promptly and that the delay in the application being heard by this Court was not of the husband’s making.
The final matter I take into account is that while there are some very serious deficiencies in the Notice of Appeal, which I will discuss with the husband soon, due to the very limited information available to me, it is not possible to say that the appeal is entirely without merit. If it was apparent that the appeal was entirely without merit, there would be no point in reinstating the appeal.
In arriving at this decision, I also take into account what Gummow & Hayne JJ said in Jackamarra v Krakouer (1998) 195 CLR 516 at 528:
When an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail.
One further matter I take into account is that there is no evidence of prejudice, in the legal sense, to the wife as a result of the Full Court being able to consider the entirety of the property settlement matter, rather than being confined to dealing with a portion of it.
RECORDED: NOT TRANSCRIBED
Provision of audio recording and transcript
Earlier in today’s proceedings I determined an application by the husband for the reinstatement of appeal WA 29 of 2017. As a result, the husband now has before the Full Court a properly constituted appeal against property settlement orders made by Duncanson J. These proceedings run alongside parenting proceedings, but at present there is no appeal before the Full Court in relation to the parenting matters.
I have now reached the stage of making directions in relation to the conduct of the two appeals (WA 29 of 2017 and WA 32 of 2017) which together challenge the substantive property settlement orders made by Duncanson J.
In the course of hearing from the husband in relation to those matters, I have dealt with a request by him to obtain an audio recording of the four days of trial before Duncanson J. Inquiries reveal that the Court will be able to accommodate the request. I have also indicated that any modest expense associated with that will be met by the Court rather than by the husband.
The next issue that arises is rather more costly and important, and relates to the provision of the transcript, which is ordinarily required in any appeal before the Full Court, as it is simply impracticable for a bench of one judge, let alone three judges as it will be in this case, to listen to a four day transcript for an appeal that is likely to occupy at most a day and more likely half a day.
The husband has foreshadowed that he does not have the financial means, easily or at all, to obtain the transcript, and rather than delay this matter by requiring the husband to make a formal application for transcript to be provided at the cost of the Court, which I have explained to him is an option, I have permitted him to make an oral application today. I earlier swore him in to give evidence in support of that application, and he has made cogent submissions dealing with the various matters which I pointed out to him are taken into account when the Court is hearing an application such as this.
The applicable principles are well known. They are laid down in Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 and more recently, for example, in Finch & Shibo (No. 2) [2016] FamCAFC 108. What those authorities make clear is that the Court is not provided by government with a fund to meet the cost of transcript for litigants, and therefore it is almost universally the case that litigants provide transcript at their own expense.
The cases make clear that transcript will not be provided at the expense of the Court except in exceptional circumstances. The Full Court in Sampson & Hartnett pointed to a number of matters that are considered when dealing with an application for provision of transcript at the cost of the Court.
The first matter taken into account is whether the case is a financial or a parenting case. As the husband correctly points out, the proceedings below involve both parenting and financial issues. However, what is relevant here is the subject matter of the appeals, and they relate only to financial issues, albeit I understand the husband will wish to refer to certain matters that occurred in the parenting proceedings in arguing his complaint of bias. For present purposes though, these are entirely financial proceedings, and in such circumstances it is extremely rare for the Court to provide transcript.
The handful of cases – and it is no more than that – where I have seen transcript provided by the Court in parenting matters are cases where there is a very serious issue involving the safety or welfare of a child, and in those circumstances, efforts have been made by the Court to find the money needed to meet the cost of the transcript. This case does not fall into that category.
The next matter to take into account is whether the whole transcript or part of the transcript is necessary for the determination of the appeals or part of the appeals. As I explained to the husband today, his grounds of appeal fall into different categories: some grounds could be made out without reference to the transcript, some simply cannot be made out without reference to the transcript, and some perhaps fall partway in between, depending upon the nature of the argument. So the appeals can in part proceed even if there is no transcript.
The next issue is the likely cost of the transcript and whether the husband can afford it. The transcript will be very expensive. Transcripts are prepared by external providers under a fixed scale of fees and in this case it is likely the transcript would cost some thousands of dollars. If the husband wishes to know precisely how much this particular transcript would cost, he can write to the court’s audio visual officer and request an estimate of the cost. Regardless, I proceed on the basis that it will be very expensive and I accept the husband would have great difficulty in affording the transcript. He is on Centrelink benefits. He lives in a country town with his mother. He has a limited ability to procure employment, and his focus, he says, is on obtaining better qualifications in order to have greater income in the future. That will, I accept, not assist him in meeting the cost of transcript now.
The next issue is the proportionality of the cost of the transcript to the husband’s anticipated costs in relation to the appeals. The husband is representing himself. There is no indication that he is obtaining any legal advice in relation to the matter, which is one of the reasons the appeals are not presented in the most appropriate form at present, so he is not going to incur the costs that other litigants who obtain legal representation incur. He will however have to incur the costs associated with the preparation of the appeal books. In terms of proportionality, the cost of preparation of the appeal books is likely to be somewhat less than the costs of obtaining the transcript.
The next issue is the prima facie merit of the appeals. It is very difficult to judge the merits of the appeals because the grounds are so poorly drawn. They simply assert error in the widest possible terms, and it is impossible to make any comment in relation to them, other than in relation to the ground of appeal regarding the adequacy of the reasons. I have done no more than have a cursory look at her Honour’s reasons. They appear to be careful and considered. There does not on their face appear to be any inadequacy, but there may be when the husband has the opportunity to present his argument.
Perhaps the strongest point that the husband might make in relation to the merits of his appeals relates to the question of bias, and that is only because her Honour has subsequently recused herself on the grounds that a reasonable minded layperson might apprehend that there was bias due to one thing her Honour did at one hearing, which, as I understand the chronology, was after the conclusion of the substantive property proceedings.
That does not give any significant indication as to the likelihood of success or otherwise of the appeals, and I therefore intend to proceed in dealing with this issue in the same fashion that I did earlier; it is simply not possible to ascertain whether there is any reasonable prospects of the appeals succeeding. That assessment can only properly be made after the grounds are amended and after the husband has had an opportunity to advance his argument.
The next question is whether the application to provide the transcript can be left to the Full Court when it hears the appeals. Theoretically it can be, but the husband would find himself at a disadvantage if he raised this issue before the Full Court, was unsuccessful, and then decided that somehow he could obtain the money for transcript, because in such circumstances the Full Court might wish the matter to proceed forthwith without the transcript.
The final issue is whether there are any other relevant facts or circumstances. I cannot think of any other relevant matters.
Summing up, in this case, being a purely financial case not involving the welfare of children, with the Court not having a fund to meet these expenses save in exceptional cases, I am not satisfied that this is in any way an exceptional case. It is, on the contrary, a fairly run of the mill case; although no doubt the parties do not perceive it that way. In those circumstances I dismiss the oral application for the provision of transcript.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Thackray J delivered on 12 February 2018.
Associate:
Date: 5 April 2018
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