Wrenley & Wrenley
[2024] FedCFamC1A 31
•14 March 2024
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 & Wrenley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
On 10 January 2024, the applicant appealed from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) on 14 December 2023 to finalise a dispute between the parties over their children.
The appeal is listed for hearing before the Full Court on Thursday 2 May 2024.
On 19 February 2024, to ensure the orderly progress of the appeal towards hearing, the appeal registrar ordered that the applicant procure, file and serve the digital transcript of the hearing before the primary judge by 11 March 2023 (Order 2) or, if the applicant files any application for relief from r 13.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), then by the time that application is determined (Order 4).
On 7 March 2024, the applicant filed an Application in an Appeal seeking orders that the Court procure the trial transcript at its expense and within the time it sees fit. The application was supported by an affidavit filed contemporaneously.
Legal principles
The Court has proceeded on the basis that, only in exceptional cases, will it relieve an appellant from the usual burden of having to provide the trial transcript for an appeal (Forbes & Bream (2008) 222 FLR 96 at [35]–[36]).
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.
The prospects of Grounds 1 and 4 depend largely upon comparison of the reasons for judgment with the contents of the appeal book – in particular, the competing applications, the lay affidavit evidence, and the expert evidence. The transcript of oral evidence is unlikely to bear materially upon the analysis of those two grounds. The applicant agreed.
In oral submissions, the applicant confirmed Ground 2 comprises a complaint that the primary judge did not attribute sufficient weight to pieces of evidence she considers ought have been given greater emphasis in the judgment. Most of the evidence she seeks to emphasise for that purpose is contained within affidavits and expert reports, but she did insist oral evidence given in cross-examination by the parties and the expert witnesses was pertinent and so the transcript of evidence is necessary to prosecute Ground 2. The difficulty for the applicant is that “weight” arguments are rarely accepted in appeals from discretionary judgments (Lovell v Lovell (1950) 81 CLR 513 at 519; Gronow v Gronow (1979) 144 CLR 513 at 519–520), so the ground does not objectively evince any confidence in its prospects.
In relation to Ground 5, the narrative in the Notice of Appeal says only this:
The judge attempted to bias the cross-examination of the witnesses by stating negative attributes and assumptions about the [applicant] that had not been proven to the witnesses …
(As per the original)
(Notice of Appeal filed on 10/1/24 at p.20)
This ground could only be usefully prosecuted by the applicant with access to the transcript, so she is able to take the Full Court to the transcript references she alleges vindicate her allegation of the primary judge’s bias, which bias she implies was actual rather than merely apprehended. She was unable to confirm which form of bias is alleged. However, the applicant acknowledged no disqualification application was made to the primary judge at the trial, meaning she will have to confront the difficult obstacle of her waiver of the bias complaint at the hearing of the appeal. That obstacle appears so impenetrable at this stage of the appellate proceedings that, as a material consideration, it militates against the Court wastefully spending its money acquiring transcript which will not prove useful.
In relation to Grounds 3 and 6, which allege a denial of procedural fairness, the narrative in the Notice of Appeal says only this:
The expert witnesses cross examination were dispersed through my own cross examination. This prevented the correct questions from being asked of the expert witnesses because that information had not yet been cross examined out of me yet.
(As per the original)
(Notice of Appeal filed on 10/1/24 at p.16)
The witnesses cross-examinations were interspersed with the [applicant’s] cross examination, preventing an effective and thorough cross examination of the witnesses which resulted in procedural unfairness.
(As per the original)
(Notice of Appeal filed on 10/1/24 at p.20)
Subpoenaed material was released mid-trial after [the respondent’s] cross examination and before mine. I was questioned by [the respondent’s] lawyer on many aspects of these subpoenas but was not allowed to discuss any of this material with my barrister because I was mid cross examination. My barrister was not even afforded the opportunity to cross examine [the respondent] on this material as his cross-examination was already over by the time these subpoenas were released. This resulted in a lack of procedural fairness.
(As per the original)
(Notice of Appeal filed on 10/1/24 at p.31)
Several trite observations may be made about trial procedure which obstruct the ready acceptance of the applicant’s complaints.
It is up to the parties to issue subpoenas to third parties requiring the production to the Court of documents they think may assist their case. It follows that they must issue such subpoenas in a timely way and ensure their inspection of the documents produced well in advance of the trial. It is not the fault of the trial judge if documents are belatedly produced by third parties in answer to subpoenas or if the parties choose not to inspect the documents early enough.
The respondent to the appeal was the applicant at first instance and so he was cross-examined before the applicant. Once the applicant was under cross-examination, she was unable to confer with her lawyers until her cross-examination was complete. At that point, she was free to confer with her lawyers about the need to apply for leave to recall the respondent for further cross-examination on belatedly inspected documents. She admitted no such application was made by her lawyers.
Decisions made by trial judges to schedule the cross-examination of expert witnesses at times to suit their other pressing professional commitments are commonly made and could rarely give rise to a complaint of the deprivation of procedural fairness. Experts are often challenged about the reliability of their opinions before important factual evidence is adduced as the foundation for such challenges. In those circumstances, the expert is asked to hypothetically accept facts which the cross-examiner expects to be able to later prove. The applicant conceded her lawyers did not object to the expert evidence being “interspersed” through her own cross-examination.
Grounds 3 and 6 do not promise much hope of success either.
Conclusion
The transcript may well be helpful to the applicant in prosecuting certain grounds of her appeal, but she fails to demonstrate the exceptional circumstances which would warrant the Court incurring the expense of procuring it for her.
Given the applicant’s demonstrated impecuniosity, she will be relieved of the usual burden of having to obtain the transcript, but she must realise that she will not be able to succeed with any ground of appeal which depends upon vindication by the transcript.
Orders will be made requiring her to file the digital transcript by Wednesday 27 March 2024, if she can somehow obtain it with the financial help of family or friends, but the application of r 13.22 of the Rules will be suspended if she does not file the transcript by that date so as to avoid the deemed abandonment of the appeal.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 15 March 2024
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