Bower & Marshall
[2022] FedCFamC1A 88
•8 June 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bower & Marshall [2022] FedCFamC1A 88
Appeal from: Bower & Marshall [2022] FedCFamC2F 349 Appeal number(s): NAA 52 of 2022 File number(s): PAC 5345 of 2020 Judgment of: ALDRIDGE J Date of judgment: 8 June 2022 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application by the appellant to be provided with the transcript of oral reasons of the primary judge – Where the appellant asserts there is a discrepancy between the oral reasons and the settled reasons – Where the appellant contends that the oral reasons contained no direct reference to the matters that were required to be dealt with – Where all parties agreed to the Court obtaining a copy of the oral transcript and taking it into account before completing the reasons for judgment – Where the primary judge added paragraphs to the settled reasons – Orders as to the original unsettled transcript of reasons to be provided to the parties – Application otherwise dismissed. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.13, 10.14 Cases cited: Bar-Mordecai v Rotman [2000] NSWCA 123
Crabman v Crabman (No 2) (2020) 61 FamLR 191; [2020] FamCAFC 146
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257; [2021] HCA 6
O'Connor & Healy [2016] FamCAFC 111
Palmer v Clarke (1989) 19 NSWLR 158
Spencer v Bamber [2012] NSWCA 274
Todorovic v Moussa (2001) 53 NSWLR 463; [2001] NSWCA 419
Number of paragraphs: 23 Date of hearing: 6 June 2022 Place: Sydney Counsel for the Applicant: Mr Flaherty Solicitor for the Applicant: Markham Geikie Farrugia Solicitor for the Respondent: Legal Aid NSW Solicitor for the Independent Children’s Lawyer: Ark Law ORDERS
NAA 52 of 2022
PAC 5345 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BOWER
Applicant
AND: MS MARSHALL
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
8 JUNE 2022
THE COURT ORDERS THAT:
1.A copy of the original unsettled transcript of the reasons given by the primary judge on 23 February 2022, clearly marked as such, is to be provided to the parties and to their legal representatives for use only in the appeal.
2.Neither the parties nor their legal representatives are to disclose the contents of the transcript or distribute copies of it to any other person.
3.The Application in an Appeal filed on 12 May 2022 is otherwise 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 Bower & Marshall has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
This is an application by an appellant to be provided with the transcript of the oral reasons of a judge of the Federal Circuit and Family Court of Australia (Division 2), as opposed to the settled reasons which have been provided to the parties. Ordinarily, parties are only entitled to see the oral reasons as settled by the judicial officer who delivered them. Here the applicant asserts that there is such a discrepancy between the two that the Court should take the rare step of providing the parties with the unsettled transcript of the oral reasons.
On 23 February 2022, the primary judge made a suite of orders preparing the matter for hearing. Order 2 dismissed the applicant’s Application in a Case filed on 23 November 2021, which sought an order that the parties’ child spend supervised time with him.
His Honour found that “permitting contact in the interim may have a serious deleterious effect upon the ability of the Respondent Mother to carry out her parenting activities such that it is not appropriate to permit contact between the Applicant Father and the Child prior to the final hearing” (at [18]).
The applicant filed a Notice of Appeal on 21 March 2022.
The parties received the settled reasons on 7 April 2022.
The essential complaint made is that the oral reasons contained no direct reference to the matters that were required to be dealt with whereas the settled reasons do contain such references.
As I have said, in appropriate cases, the parties should be granted access to the original unsettled transcript of oral reasons because it is those reasons, subject to the right of the judge who delivered them appropriately to settle them, which are the operative reasons for judgment. If impermissible additions or alterations have been found to have been made, then they are ignored at any appeal. It is for the purpose of determining whether such additions or alterations have been made that a court will take the unusual step of obtaining the original unsettled transcript.
It is well established that “a judge has some ability to improve the expression of her or his judgment in published reasons, so long as she or he does not change the substance of what was said in ex tempore reasons or make other material changes” (Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257 at [31]).
In Bar-Mordecai v Rotman [2000] NSWCA 123, the Court of Appeal of the Supreme Court of New South Wales said that “[s]o long as the substance of the ex tempore reasons is not altered, nor the reasons which they sustain, there is no bar to revision, even if it is extensive” (at [193]). See also O'Connor & Healy [2016] FamCAFC 111 at [17]–[20].
I note that there is no suggestion in the primary judge’s reasons that any changes were occasioned by a “slip” or clerical omission in the oral reasons which did not reflect the intention of his Honour (see Todorovic v Moussa (2001) 53 NSWLR 463 (“Todorovic”) at [41]–[47]; Spencer v Bamber [2012] NSWCA 274 (“Spencer”) at [137]; r 10.13 and r 10.14 of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)).
If impermissible alterations have been made, the correct approach is for the appeal to proceed on the basis that the additions had not been made (Palmer v Clarke (1989) 19 NSWLR 158 at 170; Todorovic at [53]; Crabman v Crabman (No 2) (2020) 61 Fam LR 191 at [11]; Spencer at [169]).
Thus, it may well be that the reasons, as originally expressed, do not demonstrate any appealable error (Spencer at [151] and [175]).
The evidence of the asserted additions in this matter is sparse and not particularly compelling. However, counsel for the applicant, who also appeared at the hearing, said that it was his recollection that there was no direct reference to matters that were required to be dealt with in terms that appear in the settled reasons. The Independent Children’s Lawyer, who was also present at the hearing, very properly, agreed that this was also her recollection.
Neither the mother nor the Independent Children’s Lawyer wished to be heard on the application.
In those circumstances, the parties agreed to the Court obtaining a copy of the oral transcript and taking it into account before completing the reasons.
The transcript reveals that the primary judge has extensively edited the oral reasons in an entirely permissible manner.
The settled reasons include a four page chronology, but it is clear from the oral reasons that his Honour intended to incorporate it in the settled reasons. Again, that is an entirely permissible course to avoid the unnecessary reading of long documents or quotations.
More concerning are [34] and [35] which are 18 and 16 lines long respectively and not an insignificant part of the reasons as a whole. Paragraph [34] consisted of just 4 lines in the oral reasons and [35] did not appear at all. Paragraph [37] also was not in the oral reasons, but is only one sentence.
Paragraphs [33]–[37] appear under the new heading “Findings and Reasons”. Thus, most of the content in this section of the reasons was added when they were settled.
It may well be that the additions are not regarded as changing the substance of the reasons or that, despite the new heading, the balance of the reasons adequately explain the reasons for the orders and otherwise do not disclose any appealable error, but that is a matter for the hearing of an appeal and not for consideration on this application.
I am satisfied, therefore, that it is in the interests of justice that the parties be provided with a copy of the oral reasons clearly marked as such. For obvious reasons, that document will be made available only to the parties and their legal representatives, for use in the appeal only, and not to be disclosed or distributed to any other person.
It is appropriate to make a comment about the appeal generally.
Given that the final hearing is only two months away, there is little time for the appeal against the interim orders to be heard and determined. The appeal, therefore, runs the risk as being seen to be futile.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 8 June 2022
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