FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Wrenley & Wrenley [2024] FedCFamC1A 31
Appeal from: Wrenley & Wrenley [2023] FedCFamC1F 979 Appeal number: NAA 9 of 2024 File number: HBC 966 of 2021 Judgment of: AUSTIN J Date of judgment: 14 March 2024 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of transcript – Where the applicant seeks an order that the Court procure the trial transcript (“transcript”) at its expense – Where the applicant’s evidence establishes she cannot afford the transcript – Where the transcript is not required for some grounds of appeal – Where there are no exceptional circumstances to justify the Court funding the provision of the transcript – Order made to extend the time for the applicant to file the transcript – Order made relieving the applicant of the deemed abandonment of the appeal if she fails to file the transcript – Application dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.22
Cases cited: Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220
Number of paragraphs: 25 Date of hearing: 14 March 2024 Place: Newcastle (via Microsoft Teams) The Applicant: Litigant in person Solicitor for the Respondent: Glynn Williams Legal The Independent Children's Lawyer: Did not participate ORDERS
NAA 9 of 2024
HBC 966 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS WRENLEY
Applicant
AND: MR WRENLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
14 MARCH 2024
THE COURT ORDERS THAT:
1.The time for the applicant’s compliance with Order 2 made by the appeal registrar on 19 February 2024 is extended to Wednesday 27 March 2024.
2.Orders 3 and 4 made by the appeal registrar on 19 February 2024 are discharged.
3.In the event of the applicant’s default in compliance with Order 1 hereof, the operation of r 13.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) is suspended, such that the appeal is not deemed abandoned and proceeds to hearing before the Full Court without transcript.
4.Otherwise, the Application in an Appeal filed on 7 March 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 Wrenley &…
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- Wrenley & Wrenley [2024] FedCFamC1A 31
- Case
- [2024] FedCFamC1A 31
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CaseChat Overview and Summary
The court found that Ms Wrenley could not afford the transcript, or any portion of it, as she had no income aside from welfare payments and the mortgagee refused to let her withdraw funds against the equity in her encumbered home. However, the court also noted that Ms Wrenley’s prospects of success in the appeal were not ostensibly strong, as the allegations of error within the grounds of appeal were not well particularised, and only selected portions of the transcript would be relevant to some of the grounds of appeal. The court considered that the appeal had a relatively narrow focus and was only brought from a selection of the suite of orders made by the primary judge. The court found that there were no exceptional circumstances to justify the court funding the provision of the transcript.
The court ordered that the time for Ms Wrenley’s compliance with Order 2 made by the appeal registrar on 19 February 2024 was extended to Wednesday 27 March 2024. The court also discharged Orders 3 and 4 made by the appeal registrar on 19 February 2024, which required Ms Wrenley to file the digital transcript by Wednesday 27 March 2024. In the event of Ms Wrenley’s default in compliance with Order 1, the operation of r 13.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) was suspended, such that the appeal was not deemed abandoned and proceeds to hearing before the Full Court without transcript. The court dismissed Ms Wrenley’s application in an appeal filed on 7 March 2024.
Orders
Orders of the court
NAA 9 of 2024
HBC 966 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MS WRENLEY
Applicant
AND:
MR WRENLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
14 MARCH 2024
THE COURT ORDERS THAT:
1. The time for the applicant’s compliance with Order 2 made by the appeal registrar on 19 February 2024 is extended to Wednesday 27 March 2024.
2. Orders 3 and 4 made by the appeal registrar on 19 February 2024 are discharged.
3. In the event of the applicant’s default in compliance with Order 1 hereof, the operation of r 13.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) is suspended, such that the appeal is not deemed abandoned and proceeds to hearing before the Full Court without transcript.
4. Otherwise, the Application in an Appeal filed on 7 March 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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The considerations which will influence whether such an order might be made in the exercise of discretion include these (Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 at [16]):(a)whether the case is financial or child-related;(b)whether the whole or only part of the transcript is integral to the appeal;(c)whether the appellant can defray any part of the transcript cost;(d)the proportional cost of the transcript to the anticipated cost of the appeal;(e)the prima facie merit of the appeal; and(f)whether the Full Court hearing the appeal should make the decision about transcript. Consideration For the parties’ sake, the decision about the provision of transcript should be made now and not left until the appeal hearing before the Full Court, as an adjournment of the application until then might jeopardise the hearing of the appeal, thereby causing further delay for both parties and additional expense for the respondent. The applicant’s evidence establishes she cannot afford the transcript, or any portion of it. She has no income aside from welfare payments. Her only noteworthy asset is the encumbered home in which she lives with four children and, while she has net equity of about $90,000 in the property, the mortgagee refuses to let her withdraw funds against that equity. While the applicant’s penury militates in favour of her application, there are countervailing considerations. Her prospects of success in the appeal are not ostensibly strong, because the allegations of error within the grounds of appeal are not well particularised, and the whole of the transcript will be expensive when only selected portions of it are likely to be relevant to only some of the grounds of appeal. The appeal is only brought from a selection of the suite of orders made by the primary judge. The appealed orders make provision for the manner in which the children will spend time with the respondent (Orders 6, 7 and 9), changeovers (Order 8), permission for the respondent to attend the children’s school (Order 3), and arrangements for the eldest child to participate in counselling (Order 10). The appeal therefore has a relatively narrow focus, even though the applicant contended the respondent should be entirely eliminated from the children’s lives. The grounds of appeal are pleaded by the applicant in this way:[The primary judge]1. Made a decision that was wrong, leading to injustice;2. Did not consider all relevant evidence to make a decision;3. Failed to provide procedural fairness to one or more involved parties;4. Gave inadequate reasons for their decisions and judgement;5. Acted in a way that was biased;6. Made decisions that led to the denial of natural justice.(As per the original) The grounds of appeal are followed by 24 pages of narrative, which is mostly a soliloquy of misfortune about her relationship with the respondent, the litigation in which they were engaged, and the incompetence of her former lawyers. The narrative does, however, touch upon the grounds of appeal.