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 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FedCFamC1A 19
Decision Date

CaseChat Overview and Summary

The appeal before the court concerns an appeal by the father against the dismissal of his application for orders pertaining to the custody and care of the child, born in 2015. The mother, the Independent Children’s Lawyer, and the father were all parties to the original proceedings, which were concluded in November 2022 with the dismissal of the father’s application. The father filed an appeal against this decision, which was heard on 23 February 2023, with the mother and the Independent Children’s Lawyer opposing the appeal. The court was required to determine whether the appeal should be allowed and, if so, on what terms.

The father's appeal was based on eight grounds, including claims of procedural unfairness, lack of evidence, bias, and failure to consider relevant factors. The father argued that there was an imbalance in the prudence of justice between the parties, and that the judge had not acted impartially. The court considered these arguments in light of the evidence and submissions presented during the original proceedings and the appeal hearing. The court found that the father had not demonstrated that the original decision was clearly wrong or that there were significant procedural errors.

The court held that the father had not established any grounds for allowing the appeal. The court found that the original judge had properly considered the evidence and had made findings that were supported by the evidence. The court also found that the father had not demonstrated any bias or procedural unfairness on the part of the original judge or the Independent Children’s Lawyer. The court concluded that the appeal should be dismissed, with the father to pay the costs of the appeal.

The court dismissed the father's appeal and ordered him to pay the costs of the appeal. The court found that the father had not established any grounds for allowing the appeal and that the original decision was correct. The court also found that the father had not demonstrated any bias or procedural unfairness on the part of the original judge or the Independent Children’s Lawyer. The appeal was dismissed, and the father was ordered to pay the costs of the appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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’”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 265 of 2022 BRC 1395 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR WYLDER Applicant
AND:	MS WYLDER Respondent
INDEPENDENT CHILDREN'S LAWYER

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

order made by:	TREE J
DATE OF ORDER:	24 February 2023