Swan & Swan
[2024] FedCFamC1A 19
•23 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Swan & Swan [2024] FedCFamC1A 19
Appeal from: Swan & Swan (No 2) [2023] FedCFamC1F 1086 Appeal number: NAA 344 of 2023 File number: MLC 6388 of 2020 Judgment of: RIETHMULLER J Date of judgment: 23 February 2024 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Request for Court to provide transcript for 3 days of the trial – Relevance of transcript to grounds of appeal not explained – No prima facie merit apparent on grounds of appeal – Appellant’s current solicitor wishing to review transcript in search of other possible grounds of appeal – No evidence of the likely costs of the transcript – Application dismissed. Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189
Fortnum & Fortnum (No 2) [2008] FamCAFC 73
House v The King (1936) 55 CLR 499; [1936] 55 NSWLR 499
Sampson & Hartnett (2013) FLC 93-54; [2010] FamCAFC 220
Number of paragraphs: 17 Date of hearing: 23 February 2024 Place: Parramatta Solicitor for the Applicant: Swan Hill Legal Co. Counsel for the Respondent: Mr Dean Solicitor for the Respondent: Heinz Law Solicitor for the Independent Children's Lawyer: Inclusive Family Law & Mediation ORDERS
NAA 344 of 2023
MLC 6388 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SWAN
Appellant
AND: MR SWAN
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
23 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 14 February 2024 be 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).
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 Swan & Swan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J
This is an Application in an Appeal where the appellant mother appeals against orders changing the residence of the children to the respondent father following a trial.
On 6 February 2024, after hearing the solicitors for the parties, an Appeal Judicial Registrar made directions for the proper preparation of the appeal, including an Order that the appellant “email the digital transcript of the hearing before the primary Judge (for the dates 8-10 November 2023 ie 3 days) for filing to the appeal registry” by 19 February 2024: see Order 2.
On 14 February 2024, the appellant filed an Application in the appeal seeking the following orders:
1. That this Honourable Court order that the transcript of hearing for matter [Swan] and [Swan] (MLC6388/2020) for the dates 8-10 November 2023 be provided at no cost to the Appellant.
2. That the transcripts be delivered to the Southern Appeal Registry at [...]@[...] to be joined with transcripts of other hearing days already provided by the Court.
Aside from the Notice of Appeal and the reasons for judgment by the primary judge, the only evidence relied upon by the appellant is contained in the affidavit of her solicitor filed 14 February 2024, which simply states:
1. I am an Australian Legal Practitioner and have carriage of this Appeal, having recently been instructed by the Appellant.
2. The Appeal is against the judgement made by [the primary judge] in matter MLC6388/2020 and delivered on (sic)
3. By order dated 06/02/2024 the court ordered that the transcript of the hearing before the primary judge, for the dates 8-10 November, be filed with the appeal registry by 19th February.
4. The court advised at directions hearing on 6/2/2024 that it had the transcripts for the other eight days of the primary hearing.
5. The appeal is listed to be heard by the Full Court on 20th March 2024.
6. The grounds of the appeal are such that the transcript of the hearing in the court below are essential to the Appeal Court's deliberations.
The respondent relied upon an affidavit filed on 21 February 2024 that largely sets out matters more appropriate for argument.
In Forbes & Bream (2008) 222 FLR 96, the Full Court (per Bryant CJ, Boland and Stevenson JJ) noted that the Court had “from time to time judiciously provided transcript to parties where it is demonstrably in the interests of justice to do so” (at [28]) saying that “[i]t has been assumed (without ever being decided) by this court in several cases that such a discretion exists” (at [31]). Their Honours considered that in addition to the “supervisory power of the Court” (see Fortnum & Fortnum (No 2) [2008] FamCAFC 73, per Finn J), the Court may provide the transcript of relevant parts of a matter as an incidence of the exercise of its powers to fulfill the statutory function set out in the appeal provisions (at [35]). However, it was noted that the power was unlikely to be exercised in “anything other than exceptional cases” (at [36]). Significantly, the government funds legal aid agencies to assist with court applications and does not fund the court to provide transcripts for parties on appeal.
In Sampson & Hartnett (2013) FLC 93-542, the Full Court identified a number of factors which may be relevant in support of an Application (at [16]):
a) Whether the case is a financial or parenting case;
b) Whether the whole transcript or part thereof is necessary for the determination of the appeal or part of the appeal;
c) The likely cost of the relevant transcript and whether the applicant can afford all or part of the cost of the transcript ;
d) The proportionality of the cost of the transcript to the appellant’s anticipated costs in relation to the whole appeal, including the preparation of the appeal book(s);
e) The prima facie merits of the appeal;
f) Whether the question of providing a transcript can be left to the Full Court hearing the appeal;
g) Any other relevant facts or circumstances.
The appeal concerns a parenting judgment.
There is nothing before the court to explain the relevance of all or any part of the transcript. There is no evidence of the cost of the three days of transcript that are required. The balance of the transcript had already been obtained by the court, relieving the appellant of the obligation to obtain those days’ transcript.
There is no evidence as to the costs of the appeal or the appellant’s financial circumstances. It was accepted, however, that she is in receipt of social security, was granted legal aid for the trial and is currently without legal aid. Although the appellant has applied for legal aid for the appeal, there has been no grant of aid at this time.
The grounds of appeal are in the following terms:
1. The Learned Primary Judge erred in finding that an immediate change of residence was necessary and in the children's best interests.
2. The Learned Primary Judge erred in assessing that the long term potential impacts on the children of the mother's difficulties in supporting the relationship with the father outweighed the immediate traumatic impact upon the children of the change of residence to the father's care and cessation of relationship with the mother.
3. The Learned Primary Judge's orders restricting the children's future time with the mother to six occasions per year supervised, represent an exercise of discretion that is plainly wrong.
4. The Learned Primary Judge failed to take into consideration the difficulties in the mother engaging herself and the children in therapeutic services and erred in finding that these were not relevant factors in the assessment of the mother's future capacity to support a relationship between the children and the father.
None of Ground 1 to Ground 3 allege that the primary judge acted upon a wrong principle, took into account extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration: see House v The King (1936) 55 CLR 499 at 505. These grounds of appeal appear limited to complaints that the outcome was “plainly wrong”: CDJ v VAJ (1998) 197 CLR 172 at 230–231 per Kirby J and, as a result, are grounds that are generally difficult to sustain. In this case the primary judge discussed the matters that are the subject of those grounds at length in a detailed judgment of 422 paragraphs. The appellant’s solicitor was not able to advance any details with respect to these grounds. These grounds of appeal do not, on their face, identify any basis for considering that there is prima facie merit in the appeal when read in light of the judgment.
Ground 4 is in terms that are difficult to understand. No particulars of the “reasons” referred to in Ground 4 were given in submissions on the current Application. However, it is clear that the appellant’s “failure to ensure the children’s attendance at school and upon their therapists” was a factor considered at some length by the primary judge (at [385] to [394]). In particular the primary judge noted that the appellant’s evidence was unimpressive with respect to the reasons for those failures (at [394]). As with Ground 1 to Ground 3, the appellant’s solicitor was unable to advance any details as to the ground. It is difficult to see that there is prima facie merit in Ground 4 on the material and submissions relied upon in this Application.
The appellant’s solicitor, who did not have the carriage of the trial and has only recently been instructed, also argued that there is a possibility that a review of the entire transcript may reveal a ground of appeal based upon apprehended bias, however no details were able to be provided as to what could be said to support such a ground.
The appellant did not seek orders permitting the appeal to proceed without a transcript.
The respondent opposed orders that may lead to a delay in the hearing of the appeal, however in my view the orders sought by the appellant would not delay the appeal hearing.
The circumstances of this case are not such as to warrant orders that the court provide the three days of transcript that are sought in the Application. The Application must therefore be dismissed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 23 February 2024
0
5
0