Expedition Refused, Transcript Waived: Interim Surrogacy Appeal Already Moving Fast Enough

In Gowden & Taggart [2026] FedCFamC1A 106, Schonell J dismissed the appellant’s Application in an Appeal seeking further expedition and asking the Court to meet the cost of transcript for an appeal against interim parenting orders involving a newborn child born through an altruistic surrogacy arrangement. The Court accepted the appellant had acted promptly and recognised the sensitivity of the matter, but held that the appeal was already listed within a little over two months, which effectively amounted to expedition. The Court also held that a transcript was not required because the interim hearing proceeded on the papers, there was no cross-examination, and the grounds of appeal challenged the reasons and orders rather than anything arising from oral evidence. The appellant was therefore relieved of the obligation to provide the transcript, but the broader application was dismissed.

🧩 Facts and Issues

Facts:

The case concerned a newborn child, X, born in 2026. The matter arose from a complex altruistic surrogacy arrangement involving the child’s intended parents and the appellant, who was the surrogate and the biological father’s sister. The intended parents and the surrogate are Aboriginal. The primary judge recognised the matter as complex and sensitive, involving family fracture, intergenerational trauma, cultural issues, child protection records, and competing allegations about drug and alcohol use, family violence and mental health.

Proceedings were commenced in Division 2 on 7 April 2026, four days after X was born. An interim hearing occurred on 7 May 2026, and interim parenting orders were made on 14 May 2026. Those orders provided that X live with the intended parents, that they have joint decision-making responsibility, and that X spend time with the appellant on specified days.

The appellant filed a Notice of Appeal on 1 June 2026 and an Application in an Appeal on 4 June 2026. She sought expedition of the appeal and an order that the Court dispense with the usual transcript obligation so that the Court would meet the transcript cost. She argued that X was at risk of harm in the respondents’ care and from separation from her, particularly given his age, breastfeeding history, attachment to her, Aboriginal cultural connection and removal from his birth country and family mob.

Issues:

1. Should the appeal be further expedited ahead of other urgent appeals?
2. Was the appellant’s financial hardship enough to require the Court to provide transcript at its own expense?
3. Was transcript necessary for the appeal, given the interim hearing occurred on the papers and no cross-examination occurred?
4. Should the application be dismissed while still relieving the appellant of the obligation to provide transcript?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• Part VII — parenting jurisdiction and best-interests context for the underlying interim parenting orders.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

• r 13.19(4) — where transcript is ordered, the appellant is responsible for obtaining it.
• r 13.22 — if transcript is ordered but not provided, the appeal may be deemed abandoned.
• r 13.38 — allows an Application in an Appeal to be determined in the absence of the parties.

📌 Precedents Relied On

• Villa & Villa [2025] FedCFamC1A 214 — principles for expedition of appeals, including promptness, prejudice, urgency, and whether the appeal should be heard ahead of other pending appeals.
• Smits & Jansen [2025] FedCFamC1A 164 — only in exceptional cases will an appellant be relieved of the usual transcript burden and have transcript provided by the Court at its own expense.
• Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 — relevant considerations for transcript applications, including whether transcript is necessary, cost, proportionality, merits, and whether the issue can be left to the appeal court.
• House v The King — relevant because one ground of appeal alleged the interim orders were unreasonable or plainly unjust.

🧠 Analysis

Issue

Did the circumstances justify further expedition of the appeal and an order requiring the Court to provide transcript, or was the appeal already proceeding urgently enough and capable of being determined without transcript?

Rule

Expedition is not granted merely because a matter is important or emotionally urgent. The Court must decide whether the appeal should be heard before and in priority to other appeals already awaiting hearing. Relevant considerations include whether the applicant acted promptly, whether expedition would prejudice the respondents, and whether there are circumstances justifying priority over other urgent cases.

Transcript is ordinarily the appellant’s responsibility. The Court will only relieve an appellant of that burden or provide transcript at public expense in exceptional circumstances. The key question is not only whether the appellant can afford transcript, but whether transcript is actually necessary for the appeal.

Application

1. The appellant acted promptly

Schonell J accepted the appellant moved quickly. The interim orders were made on 14 May 2026, the Notice of Appeal was filed on 1 June 2026, and the Application in an Appeal was filed on 4 June 2026. That weighed in her favour.

2. But the appeal was already effectively expedited

The appeal was listed for hearing in the week commencing 24 August 2026. That meant it would be heard in a little over two months.

The appellant’s case for urgency rested on serious matters: X’s age, the fact he had been removed from her care, her breastfeeding history, concerns about attachment, Aboriginal cultural connection, and alleged risks in the respondents’ care. However, the Court noted those contentions had already been addressed by the primary judge and informed the reasons for the interim orders.

Schonell J held that there was nothing in the appellant’s affidavit so compelling as to justify moving the appeal ahead of other appeals that may also involve urgent circumstances. Because the matter was already listed in the August sittings, the listing itself effectively amounted to expedition.

3. Financial hardship alone did not justify Court-funded transcript

The appellant gave evidence that she was unemployed, reliant on Centrelink, paying rent, caring for other children, and unable to afford transcript. She said she would not be able to produce the transcript without the Court’s assistance.

But the Court’s analysis did not stop at affordability. The real question was whether transcript was needed at all.

4. Transcript was unnecessary because the appeal turned on reasons and orders

The interim hearing had proceeded on the papers. There was no cross-examination of any party or witness. The matter was determined by submissions.

The appellant’s own affidavit stated that the appeal was confined to errors in the primary judge’s Reasons for Judgment and Interim Orders. The Notice of Appeal contained three grounds:

1. error in risk assessment;
2. orders said to be unreasonable or plainly unjust; and
3. inadequate reasons.

None of those grounds required transcript. There was no oral evidence to analyse, no cross-examination to review, and no transcript-dependent procedural issue.

5. The practical result: application dismissed, transcript obligation dispensed with

The appellant had asked for the Court to meet transcript costs. Instead, Schonell J took a simpler and more proportionate course: because transcript was not necessary, the appellant did not need to obtain it at all.

Accordingly, the Application in an Appeal was dismissed, but the requirement for the appellant to obtain transcript was dispensed with.

Conclusion

The Application in an Appeal was dismissed. The appeal was not further expedited because it was already listed within a timeframe that effectively amounted to expedition.

The Court did not order that it would pay for transcript. Instead, it dispensed with the requirement for the appellant to obtain transcript because the transcript was unnecessary for the appeal.

🧠 Take-Home Lesson

This case is a practical reminder that expedition is a comparative exercise. Even where a case is sensitive, urgent and emotionally significant, the Court must ask whether it should jump ahead of other urgent appeals. A listing within a little over two months may itself be treated as expedition.

It also clarifies the transcript issue. Financial hardship matters, but the first question is whether transcript is needed. If an interim appeal turns only on alleged errors in the reasons and orders, and the hearing was on the papers with no cross-examination, transcript may be unnecessary. In that situation, the better outcome may be to dispense with transcript altogether rather than require the Court to fund it.