Taggart and Taggart - [2017] FamCAFC 262

FAMILY COURT OF AUSTRALIA

TAGGART & TAGGART

[2017] FamCAFC 262

FAMILY LAW – APPEAL – Application to adjourn – Application made on the day of appeal hearing – Previous application to dispense with the requirement to provide transcript of the proceedings before the primary judge – Appellant in the process of seeking a review of a decision denying her Legal Aid – Appellant recently obtained advice that transcript necessary to properly prosecute appeal – Found the appellant would be irreparably prejudiced without the transcript – Costs application made by respondent and independent children’s lawyer – s 117(4) of the Family Law Act 1975 (Cth) applied – Appeal adjourned not to be relisted until the appellant provides the transcript – Appellant to pay respondent’s costs thrown away in fixed sum.

Family Law Act 1975 (Cth) s 117(4)

APPELLANT:

Ms Taggart

RESPONDENT:

Mr Taggart

INDEPENDENT CHILDREN’S LAWYER:

Couper Geysen Family & Animal Law

FILE NUMBER:

BRC

10337

2014

APPEAL NUMBER:

2016

DATE DELIVERED:

25 August 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Thackray, Ryan & Forrest JJ

HEARING DATE:

25 August 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

9 September 2016

LOWER COURT MNC:

[2016] FCCA 2362

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Andrew

SOLICITOR FOR THE RESPONDENT:

Norman & Kingston

COUNSEL FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Ms Bertone

SOLICITOR FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Couper Geysen Family & Animal Law

Orders

The appeal be adjourned.
Until further order, the appeal not be relisted until the appellant obtains and files and serves the transcript of the proceedings before the primary judge.
The appellant pay the respondent’s costs thrown away in the fixed sum of $3,500.
The application for costs made by the Independent Children’s Lawyer be dismissed.

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 Taggart & Taggart 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 65 of 2016
File Number: BRC 10337 of 2014

Ms Taggart

Appellant

And

Mr Taggart

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Thackray J

The application before the Court is that of the appellant, Ms Taggart (“the mother”), for an adjournment of the appeal listed before the Full Court today.
The application is opposed by Mr Taggart (“the father”).
To provide context for the application, I will refer to the procedural history and to matters that have been put to us by the parties in relation to the application.
At the heart of these proceedings is the welfare of a young boy, B (“the child”), born in October 2008. There was a contest in the Federal Circuit Court between the mother and the father in relation to arrangements that will affect the child’s welfare for the rest of his life.
The matter came before Judge Baumann in early 2016 and, on 9 September 2016, his Honour made an order which provided for the father to have sole parental responsibility for the child and for the mother to spend time with him “as agreed between the parties in writing”. If there was no agreement, there was to be a moratorium, effectively, on the mother spending time with the child, following which there was to be a regime allowing for the mother, who had previously been his primary caregiver, to spend time with him on weekends and during school holidays.
His Honour gave comprehensive reasons explaining why those orders would be appropriate orders in the best interests of the child. Unsurprisingly, given the gravity of the orders made, the mother was aggrieved by his Honour’s decision and exercised her right to appeal against his decision. On 23 September 2016, she filed a Notice of Appeal. At that time she was represented and the Notice was signed by her legal representative.
The matter then proceeded in what might be seen as the ordinary way, with a directions hearing conducted by the Appeal Registrar on 21 November 2016, at which time orders were made for the filing of the appeal books and for the provision of summaries of argument by the mother, the father and the Independent Children’s Lawyer (“ICL”). The orders noted that the appeal would be listed for hearing in the next available Brisbane Full Court sittings.
As part of the process leading up to that order, an appeal book index had been provided. It was clearly identified in this document that the transcript of the proceedings before the primary judge was to be provided. The appeal books, which are difficult to compile and sometimes expensive, were provided to the Appeal Registrar, although they may have been not within the required time frame.
At some point in the process, the mother became unrepresented. In the course of being unrepresented, the mother was in communication with the Appeal Registrar about the conduct of her appeal, including, I infer, about bringing her appeal on more expeditiously. On 12 May 2017 the Appeal Registrar wrote to the mother giving her advice about the expedition of her appeal.
In the course of writing to the mother about this issue, the mother was advised by the Appeal Registrar in the following terms:
To seek to be excused from providing transcript for the hearing of the appeal, and given there is already a pending application in an appeal filed concerning transcript filed on 20 January 2017, you will need to file an amended application in an appeal together with an affidavit in support, setting out the evidence in support of the orders you now seek.
As the Appeal Registrar correctly observed in that letter, there had been an application regarding dispensation from the provision of transcript for the appeal, filed at a fairly early stage in the process. That application had not been given a formal hearing date, as is the common course. Then on 15 May 2017 the mother provided an amended application, in which she sought to be excused from providing the transcript, stating that the cost of the transcript was more than could be raised in time for the appeal to be heard in a timely manner.
The document was not in the appropriate form and, on 16 May 2017, the Appeal Registrar returned the document and the supporting affidavit to the mother unfiled and explained to her the way in which she would need to amend the document to bring it into proper form. We are told today that it was at around the time of this letter that the mother applied for legal aid.
The mother was unsuccessful in her first attempt to obtain legal aid. It seems she was then advised of her right to challenge the decision and she instituted a review process. We have been told today that while the review process can sometimes be undertaken with some expedition, sometimes it can be more drawn out. The mother has informed us that she has yet to hear the outcome of her application for a review and I have no reason to disbelieve her.
In understanding the position of the mother during the course of this process, it should also be noted that in the letter of 12 May 2016, to which I referred earlier, the mother was informed that “It is currently anticipated your appeal would be listed for hearing in the Brisbane Full Court sittings in the week commencing 13 November 2017.”
As a further part of the chronology it should be observed that the mother, although late, complied with her obligation to file a summary of argument on 20 April 2017. The ICL and the father then responded by filing their summaries of argument on 29 May 2017 and 2 June 2017 respectively.
The mother, in reading those documents, would have seen that counsel had properly drawn attention to the fact that many of her grounds of appeal would not be able to be agitated without the benefit of the transcript. Reading those grounds of appeal, and reading what was said more particularly in support of them, it is readily apparent that not an insignificant part of the mother’s argument would depend upon her having transcript available to support various propositions she clearly wishes to make.
The next very significant development in the chronology is that, having previously been told that it was anticipated the matter would be listed in the last sittings in Brisbane this year, the mother and the other parties received by email a letter dated 10 August 2017 from the Appeal Registrar in which they were advised that the matter was now listed for hearing in this Full Court today. Effectively, the parties had just two weeks’ notice at best of the fact that the matter would proceed today.
In the course of argument today, I pointed out that one very significant consideration from the point of view of the expeditious conduct of the work of the Full Court is that sitting days are precious. Although the Court endeavours to get through the work as expeditiously as practicable, there is more work than we can adequately handle with the resources we have. Therefore from the point of view of the Court, and more importantly from the point of view of other litigants, it is critical that we not allow time to be wasted whenever practicable. As such it is important to observe that, in this instance, the reasons the matter was listed on much shorter notice than normal was because another matter that was listed for today no longer needed a hearing date.
At the outset of the hearing today, without any notice to the other parties and without any notice to the Court, the mother sought an adjournment. She did not do so, however, until we had dealt with her application seeking permission to proceed without the benefit of transcript. Counsel for the father and the ICL did not oppose that course, and we made the order that the mother had sought, pointing out that this would mean that she would be unable to agitate some of the matters that she wished to agitate in her grounds of appeal. It was only at that eleventh hour that the mother announced she needed an adjournment.
In support of the adjournment, the mother advised that only last night she received advice from a lawyer that she would need to seek an adjournment because, in order to prosecute her appeal appropriately, she would need the transcript. In my view, it should have been readily apparent to the mother, at the very latest, at the time of the directions hearing last year that the transcript was required. Indeed, it is vital to the arguments that the mother seeks to advance and yet it is only at this late stage that the mother seeks to have the proceedings postponed, pending provision of the transcript.
In fairness to the mother, it has to be reiterated that she has at least been endeavouring to deal with this in one way or another at earlier stages; that is, by seeking to go ahead without transcript. The advice that the mother has now received is undoubtedly correct, and counsel properly have not sought to put that point in issue. At the risk of repeating myself, in my view this appeal cannot be properly agitated without the benefit of transcript.
The mother has told us today that her financial situation is precarious. It is apparent from her own statement that she could not afford the transcript readily, nor afford the cost of legal representation. Yet she tells us that if her appeal against the decision of the Legal Aid authority is refused, she will be able to obtain the transcript and meet the cost of counsel by drawing upon funds that her family have available. Indeed, she has had reassurance from her family in Court today that that is the position.
As counsel for the ICL has said, it would be a very great misfortune if the matter were to come back before the Court on a future occasion only to find ourselves in precisely the same position we are in today, with the mother self‑represented and without the benefit of transcript.
The application for an adjournment is opposed by counsel for the father and by counsel for the ICL. The father is not present in Court today and although he is not legally required to be here, it might be thought that ordinarily a person in his position would attend. Instead, he is here represented by counsel and instructing solicitor, who have told us that there are costs associated with their presence in Court today, falling just short of $7,000.
The father does not have legal aid. It is said, on his behalf, that the asset pool about which the parties are disputing in the court below has a negative position, and although he has employment, there is no reason to think anything other than that an adjournment will cause him expense that will be difficult for him to meet. Counsel for the father has therefore put the mother on notice that the adjournment may come at the risk of the payment of a significant amount of costs to the father thrown away as a result of an unnecessary adjournment.
Otherwise, in support of the father’s position, his counsel has drawn attention to the chronology which I have already outlined, and has appropriately pointed out that this matter could have been dealt with quite differently at various steps in the process.
Counsel for the ICL has indicated that the costs associated with her attendance today and that of her instructing solicitor are $4,440. Those costs will, of course, be thrown away if the parties have to come back on another occasion.
Similarly, counsel for the ICL draws attention to the chronology and the way in which the matter could have been dealt with differently. Counsel also recognised, as Justice Ryan has pointed out, that s 117(4) of the Family Law Act 1975 (Cth) provides that no matter the circumstances, a court must not make an order in favour of an ICL against a litigant if the making of such an order would cause financial hardship to the litigant. Although she is instructed to pursue her application for costs, counsel for the ICL is not in a position to put anything before us to suggest that the mother would incur anything other than hardship in the event that an order for costs was made.
The mother, in response, has said that apart from the fact that she is on a pension, she has no assets and no savings. She has a claim for property settlement involving, it seems, the father’s superannuation, but counsel for the father on instructions advises us that the father’s position in that litigation is that he would be under no obligation to pay anything to the mother. And, I repeat, his asset position is in the negative. This therefore remains an outstanding claim which has not yet been determined by the court below.
In sum, the most significant issue, in my view, is the one that I mentioned at the outset; these proceedings involve the welfare of a very young child. Without seeking to prejudge the appeal, the primary judge prima facie provides more than adequate explanation as to why the order made was appropriate. Regardless, the mother is entitled to challenge that order. She may be able to convince a court that there is merit in her position, and it is an acknowledged fact that in seeking to do so she is irreparably prejudiced by the absence of transcript. The mother accepts that the appeal ought not to be relisted unless she makes transcript available to the Full Court.
Because the matter involves the welfare of a child, because the mother is irreparably prejudiced without the transcript, and in part because the appeal has been brought on somewhat more quickly than might have anticipated, it would be my view that the application for an adjournment ought to be granted. However in my view it also ought to be granted only on the basis that there is some regard paid to the considerable expense to which the father will be put as a result of the adjournment. Although I have heard nothing to say that the amount that he seeks is inappropriate, I acknowledge the mother is not in a position to comment on that, being a self-represented litigant.
Endeavouring to balance the interests of the mother and father, and taking into account the fact the costs that we are dealing with are only the costs thrown away, I would grant the adjournment on the basis that the mother contribute to the father’s costs in an amount to be fixed at $3,500.
Counsel for the father seeks that the appeal be stayed pending the payment of the costs, but I concur with what has already been said by my colleague, Justice Ryan, that one view of that would be that the mother would be held to ransom in relation to an appeal concerning the interests of a young child. I would therefore not make the order on the condition that counsel for the father has proposed, but I would impose the condition that until further order of the Court, the appeal not be relisted until such time as the mother has provided transcript.

RYAN J

I agree with the reasons given by the presiding judge, and the orders proposed.

FORREST J

I would make the same orders that Thackray J proposed, and for all the same reasons that he gave.

THACKRAY J

On that basis, the formal orders of the Court are these:
1.The appeal be adjourned.
2.Until further order, the appeal not be relisted until the appellant obtains and files and serves the transcript of the proceedings before the primary judge.
3.The appellant pay the respondent’s costs thrown away in the fixed sum of $3,500.
4.The application for costs made by the Independent Children’s Lawyer be dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Ryan & Forrest JJ) delivered on 25 August 2017.

Associate:

Date: 5/12/17