Wylder & Wylder
[2023] FedCFamC1A 19
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Wylder & Wylder [2023] FedCFamC1A 19
Appeal from: Wylder & Wylder [2022] FedCFamC2F 1366 Appeal number(s): NAA 265 of 2022 File number(s): BRC 1395 of 2021 Judgment of: TREE J Date of judgment: 24 February 2023 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – TRANSCRIPT – Where the father seeks to dispense with the requirement for him to obtain and file transcript of the proceedings for the purposes of his appeal – Where the transcript is necessary for the determination of the proposed grounds of appeal – Where the father has not provided evidence of his financial circumstances – Where to permit the appeal to proceed without transcript would be an exercise in futility – Application dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.31, 13.19
Cases cited: Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220 Number of paragraphs: 16 Date of hearing: 23 February 2023 Place: Cairns The Applicant: Self-represented litigant Counsel for the Respondent: Mr Foley Solicitor for the Respondent: Get Real Legals Counsel for the Independent Children's Lawyer: Mr Todman Solicitor for the Independent Children's Lawyer: Queensland Legal Practice ORDERS
NAA 265 of 2022
BRC 1395 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR WYLDER
Applicant
AND: MS WYLDER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
TREE J
DATE OF ORDER:
24 February 2023
THE COURT ORDERED ON 23 FEBRUARY 2023 THAT:
1.The applicant’s Application in an Appeal filed 7 February 2023 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).
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 Wylder & Wylder has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
introduction
On 9 November 2022, a judge of the Federal Circuit and Family Court of Australia (Division 2) made final parenting orders relating to the parties’ seven year old child. Those orders provide for Ms Wylder (“the mother”) to have sole parental responsibility for the child, who is to live with her and spend no time with Mr Wylder (“the father”). The father filed a Notice of Appeal from those orders, which appeal is yet to be listed for hearing.
On 24 January 2023, an appeal judicial registrar made the usual procedural orders to ready the appeal for hearing. Those orders required the father to obtain and file transcript of the proceedings before the primary judge by no later than 4.00 pm on 10 March 2023 (Orders 9 and 10), and failing such the appeal would be deemed abandoned (Order 11).
By his Application in an Appeal filed 7 February 2023, the father now seeks an order dispensing with the requirement for him to obtain the transcript of the hearing before the primary judge for the purposes of his appeal, and thus for the appeal to proceed without it. The father also seeks an order in his application that his bank account details are not to be disclosed to the mother and her partner. This additional order seems to relate to the reason why the father has not provided evidence of his financial circumstances to support his contention that he cannot afford the transcript.
The application was listed for hearing before me on 23 February 2023, at which hearing both the mother and the Independent Children’s Lawyer opposed the relief sought in the father’s application. On that occasion I dismissed the father’s Application in an Appeal, with reasons to follow. These are those reasons.
background
The father was born in 1977 in Australia and the mother in 1995 in Country B. They met in Country B and married there in 2013, after which they came to Australia in 2015 when the mother was pregnant with the child. The child was born in Australia in late 2015.
The parents separated sometime before the father first commenced proceedings in 2019. Those first proceedings were dismissed after the parties had disengaged from them. The second set of proceedings were initiated in July 2021 after the mother applied for a recovery order of the child, which recovery order was executed on 13 August 2021. Since then, the child has been in the care of the mother and has neither spent time nor communicated with the father.
During the proceedings, both a family report and a psychiatric report were undertaken in relation to the parties and child, together with a formal risk assessment report in relation to the father. All reports were relied upon and admitted into evidence, and the single experts were cross-examined at the trial, their evidence being accepted by the primary judge and bearing significantly upon his Honour’s reasons for judgment.
After three days, the trial concluded in October 2022, with judgment being delivered on 9 November 2022.
The father’s Amended Notice of Appeal filed 15 February 2023 contains eight grounds as follows:
1.)unequal / imbalance of jurice prudence between parties. “HON Matt Foley / Tracey Price . BA. verse’s “Mr Wylder”, “The Lawn Mower Man.” Human rights Act, 2019, “Right to fair Trial.”
2.)The denial of “Procedural Fairness”, at both the trial & the appeal.
3.)Lack of Evidence to support “Reasons for Judgement.” (Counter factual, Speculatory, Conjectural Nullifying Statements.
4.)Judges failure to act / report / recognise BIAS behaviour, in regards to the ICL and ICL Barrister. Catherine Stuart and Mr Toddman.
5.)BIAS Judge.
6.)The judge did not take into account relevant considerations.
7.)The judge used his disgression to arrive at a decision that was clearly wrong.
8.)The Judge expressed personal opinions in performance of judicial duties. (Lack of, “Impartiality.”)
(As per the original)
application for dispensation of transcript
Rule 13.19(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides that the applicant or, if so ordered, the cross-applicant, is responsible for obtaining any transcript of the hearing relevant to the appeal or cross appeal. It may be taken as uncontroversial that under r 1.31 the court may, where it is consistent with the interests of justice, dispense with that requirement.
In his affidavit filed in support of his application, the father says he cannot afford to buy the transcript and that his financial position is “paycheque to paycheque”. He annexes what purports to be a quote from Auscript for the estimated costs of obtaining three days of transcript on a next day turnaround (said to be approximately $6,820-$7,540), and for a 10 day turnaround (between $5,090-$5,630). The father further contends in his written submissions that he “would like to be able to dispense with the ‘Auscript Transcript’ and proceed to the Appeals Hearing without being forced to exit the legal system because I can’t afford the transcripts”, whilst also submitting that he would “like to refer to evidence, [b]ut I would also like to refer to my ‘Right to Privacy’”.
From the father’s submissions, it appears the reason he has not provided evidence of his financial circumstances to support his application to dispense with transcript is because he believes the mother (or her partner) will share this information. The father says he “has no issue showing my bank account details to the Judge and [the Independent Children’s Lawyer]”, but will not do so to “anyone on the Mothers side”. Of course, that is quite an untenable suggestion, as it would be unfair to the mother.
The factors enunciated in Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 at [16] that the Court may take into account in an application for provision of transcript are relevant also in deciding whether to exclude the transcript, as follows:
(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 applicant'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.
By reference to those matters:
(a)the appeal arises from a parenting case, involving expert evidence given both by affidavit and orally (which the primary judge accepted) that the father was a high risk of harm to the child, including by way of murder/suicide of the mother and child;
(b)Ground 1 of the father’s Amended Notice of Appeal is misconceived and without merit. The complaint in Ground 2 of procedural unfairness at the appeal – which has not been heard – is spurious, and, absent any application to discharge the Independent Children's Lawyer having been made, Ground 4 is also bound to fail. Patently, Grounds 2, 3, 5, 6 and 8 will all require transcript of the trial in order for them to be argued at all, and Ground 7 will necessarily require a consideration of all of the evidence, including that given under cross-examination. Thus, to the extent to which the grounds are not misconceived, the transcript is necessary for the determination of the appeal. If the appeal were to proceed without transcript, it would be bound to fail, and hence to permit it to so proceed would be an exercise in futility, quite contrary to the mandate which parliament has given this Court to “facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible” (s 67(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth));
(c)the cost of the transcript is said to be between $5,090 at the cheapest, and $7,540 at the most. The father has not provided evidence of his financial circumstances other than stating he cannot afford it, so the material simply does not permit me to confidently make findings about the father’s capacity to fund transcript;
(d)it appears transcript would be the only cost of the appeal for the father;
(e)it is not presently possible to discern any merit in the appeal, given the current state of the father’s grounds, most notably the complete absence of any particularity as to complaints contended;
(f)the provision of transcript is not conveniently deferred to the Court hearing the appeal;
(g)as was submitted by counsel for the Independent Children’s Lawyer, it will be prejudicial to the respondents in their preparation for the appeal hearing if the transcript is not produced by the father.
Weighing those matters in the balance tells firmly against dispensing with transcript in this appeal.
outcome
For these reasons, on 23 February 2023 the father’s Application in an Appeal filed 7 February 2023 was dismissed.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 24 February 2023
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