Batey-Elton & Elton (No 2) - [2008] FamCAFC 202

FAMILY COURT OF AUSTRALIA

BATEY-ELTON & ELTON (NO. 2)

[2008] FamCAFC 202

FAMILY LAW - APPEAL – Application by appellant that a non-lawyer appear for her as advocate in respect of her application in a case – Appellant conceded that she is able to present and support her application but anticipated being unable to deal with responses – Appellant does not have medical certificate – Person sought to be her advocate is also a deponent in her application – This was not an extraordinary case whereby a person might be permitted to speak on behalf of a litigant – Application dismissed

FAMILY LAW - APPEAL – Appellant asserted that audio recording of Court hearing had been improperly altered – Appellant’s application to listen to and/or purchase an audio copy of the transcript of hearing before trial Judge and to subpoena the National Transcription Service for any original version of the audio recording of the said hearing – Concern about the integrity of material before the Full Court on appeal – However functions of appellate court do not include assisting investigation of conspiracy on the basis of a litigant’s suspicions – Consideration of grounds of appeal concerning bias of the trial Judge – Leave granted in limited terms to appellant to subpoena the National Transcription Service – Leave granted to all parties to listen to audio tapes – Appellant’s application otherwise dismissed – Parts of husband’s response dismissed – Further extension of time granted for filing appeal books

APPELLANT:

Ms Batey-Elton

RESPONDENT:

Mr Elton

FILE NUMBER:

TVF

2250

2004

APPEAL NUMBER:

2008

DATE DELIVERED:

5 December 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Warnick & May JJ

HEARING DATE:

5 December 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

20 June 2008

LOWER COURT MNC:

[2008] FamCA 562

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Self represented

COUNSEL FOR THE RESPONDENT:

Mr Page SC

SOLICITOR FOR THE RESPONDENT:

Rod Madsen Solicitors

INDEPENDENT CHILDREN'S LAWYER

Mr McGregor

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER:

Forest Glen Lawyers

Orders

That time for filing Appeal Books and outlines of argument in support of the appeal be extended to 4 pm 12 January 2009.

That no later than 24 hours prior to the date for the hearing of the appeal, the Respondent, the Independent Children’s Lawyer, and the Trustee in Bankruptcy provide the Appellant with copies of submissions in opposition to the appeal.

That leave be granted to the Appellant to subpoena the National Transcription Service to produce on 19 December 2008, or such later date as the Appeal Registrar may direct, the original unedited audio tapes and/or CDs of the proceedings before Justice Jordan on 13 March 2007, 4 September 2007, 19 February 2008, 15 April 2008 and 20 June 2008 and such further dates as the Appellant shall in writing advise the Respondent, the Official Trustee in Bankruptcy, the Independent Children’s Lawyer and the Appeals Registrar by 4 pm Monday 8 December 2008.

That…

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: [2008] FamCAFC 202
Decision Date: 5 December 2008

CaseChat Overview and Summary

The appeal involved a litigant who sought to have a non-lawyer advocate represent her in a family law case. The litigant, unable to respond to opposition material, wished for a non-lawyer to act on her behalf. The Court also had to consider an application to subpoena the National Transcription Service for audio recordings of previous hearings, as the litigant suspected they had been altered. The Court needed to determine whether the litigant could have a non-lawyer advocate and whether the litigant's concerns about the integrity of the audio recordings warranted investigation.

The Court ruled that permitting a non-lawyer to act as an advocate was not appropriate unless in extraordinary circumstances, and the litigant's situation did not meet this criterion. The Court also held that the appellate court's function did not include investigating suspicions of conspiracy, and the litigant's concerns about the audio recordings were not sufficient grounds for such an investigation. However, the Court granted leave for the litigant to subpoena the National Transcription Service for the original audio recordings of certain hearings, and all parties were allowed to listen to these tapes. The litigant's other applications were dismissed, and parts of the husband's response were also dismissed. The Court further extended the time for filing appeal books.

The Court made several orders to facilitate the appeal process, including extending the time for filing appeal books and outlines of argument. It also required the respondent and other parties to provide the appellant with copies of their submissions in opposition to the appeal. The Court granted leave to the appellant to subpoena the National Transcription Service for the original audio recordings of specified hearings and allowed all parties to listen to the tapes. The appellant's other application was dismissed, as were certain parts of the husband's response. The Court reserved the costs of the appellant's application and the hearing before the Court.

Orders

Orders of the court

That time for filing Appeal Books and outlines of argument in support of the appeal be extended to 4 pm 12 January 2009.

That no later than 24 hours prior to the date for the hearing of the appeal, the Respondent, the Independent Children’s Lawyer, and the Trustee in Bankruptcy provide the Appellant with copies of submissions in opposition to the appeal.

That leave be granted to the Appellant to subpoena the National Transcription Service to produce on 19 December 2008, or such later date as the Appeal Registrar may direct, the original unedited audio tapes and/or CDs of the proceedings before Justice Jordan on 13 March 2007, 4 September 2007, 19 February 2008, 15 April 2008 and 20 June 2008 and such further dates as the Appellant shall in writing advise the Respondent, the Official Trustee in Bankruptcy, the Independent Children’s Lawyer and the Appeals Registrar by 4 pm Monday 8 December 2008.

That the Appellant, the Respondent, the Official Trustee in Bankruptcy, Independent Children’s Lawyer, and Mr [B] be granted leave to listen to such audio tapes and/or CDs by arrangement with the Brisbane Registry of Court.

That the Appellant’s Application filed 25 November 2008 otherwise be dismissed.

That paragraphs 1, 2 and 3 of the Husband’s Response filed 27 November 2008 be dismissed.

That the costs of and incidental to the Wife’s Application filed 25 November 2008 and of the hearing before the Court on this day be reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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