Chisholm & Roberts
[2009] FamCAFC 57
•13 February 2009
FAMILY COURT OF AUSTRALIA
| CHISHOLM & ROBERTS | [2009] FamCAFC 57 |
| FAMILY LAW - APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Where applicant seeks the Court provide transcript of the first instance proceedings at its own cost – Where applicant asserts she is impecunious – Where application opposed by respondent – Where application neither opposed nor supported by independent children’s lawyer – Where competing considerations of public policy and justice – Where not able to determine at this stage whether transcript will be necessary – Application stood over to the Full Court hearing the appeal. FAMILY LAW - APPLICATION IN AN APPEAL – CASE STATED TO FULL COURT – Where case not stated by Federal Magistrate – Where proposed case stated not to determine a question of law in proceedings before the Federal Magistrate – Where case not stated by Judge or Federal Magistrate and at least one of the parties as required by s 94A of the Family Law Act 1975 – Application dismissed. FAMILY LAW - APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where application prematurely made – Where the Family Law Rules 2004 make adequate provision for the filing of such applications – Application refused. FAMILY LAW - COSTS – The independent children’s lawyer costs are reserved to the Full Court hearing the appeal. |
| Family Law Act 1975 (Cth) – s 4, s 94A, |
| Daff & Daff (1984) FLC 91-516 Forbes & Bream [2008] FamCAFC 189 Mullane & Mullane (1980) FLC 90-826 |
| APPLICANT: | Ms Chisholm |
| RESPONDENT: | Mr Roberts |
| INDEPENDENT CHILDREN’S LAWYER: | Mark Whelan |
| FILE NUMBER: | SYM | 8753 | of | 2006 |
| APPEAL NUMBER: | EA | 9 | of | 2009 |
| DATE DELIVERED: | 13 February 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 13 February 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 23 December 2009 |
LOWER COURT MNC: | [2008] FMCAfam 1419 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Potkonyak |
| ADVOCATE FOR THE RESPONDENT: | Mr Roberts appeared in Person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Fernie as agent for Mark Whelan |
Orders
That the appellant’s application for provision of transcript of the proceedings before Federal Magistrate Sexton be stood over for consideration by the Full Court hearing the appeal.
That the appellant may be provided at her cost the CDs of the sound files of the proceedings, excluding the reasons for judgment, before Federal Magistrate Sexton on 15 August 2008, 19 August 2008, 3, 4 and 5 December 2008.
That any application to adduce further evidence be made in accordance with Chapter 22 of the Family Law Rules, 2004 or as otherwise ordered by the Full Court hearing the appeal.
That the Application in an Appeal filed 9 February 2009 is otherwise dismissed.
That the appellant file and serve on or before 20 February 2009 an amended draft appeal book index setting out with particularity the dates of relevant applications and responses together with details of deponents of affidavits and date of filing of such affidavits. The appellant shall include in the draft appeal details of the written submissions including the date thereof provided to Federal Magistrate Sexton for the purpose of the proceedings.
That there be dispensation from compliance with Rule 22.17(2)(b) and Rule 22.20(3)(j) of the Family Law Rules, 2004.
That the appellant may on filing an Application in an Appeal apply for the Court to pay the cost of the sound files ordered today provided however if such application is made it must be supported by a sworn Financial Statement.
That any party be at liberty to apply for any further directions to the Honourable Justice Boland (or if not reasonably available to another member of the Appeal Division) upon seven (7) days notice in writing to the other parties and to the Regional Appeal Registrar in the Sydney Registry.
That the Independent Children’s Lawyer’s costs of and incidental to this hearing be reserved to the Full Court
IT IS NOTED THAT the parties are to appear before the Appeal Registrar for the purpose of settling the appeal book index and for the making of any necessary directions for the hearing of the appeal on 27 February 2009.
IT IS FURTHER NOTED pursuant to these orders the index to the appeal book will not contain any transcript of the proceedings before Federal Magistrate Sexton on 15 August 2008, 19 August 2008, 3, 4 and 5 December 2008.
IT IS NOTED that publication of this judgment under the pseudonym Chisholm & Roberts is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 9 of 2009
File Number: SYM 8753 of 2006
| Ms Chisholm |
Applicant
And
| Mr Roberts |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
On 19 December 2008, Federal Magistrate Sexton made orders in parenting proceedings between Mr Roberts and Ms Chisholm about their only child, B, then aged 12 years. The Federal Magistrate’s orders provide for the child to live with the father and for the mother to spend time with the child. On 16 January 2009 the mother filed an appeal against Orders 2, 4, 7 and 9(b) of the Federal Magistrate’s orders.
The mother has now filed an application in an appeal. That application was filed on 9 February 2009 and is the application presently before me. Three orders are sought by the mother in her application. They are as follows:
1.That the transcripts (in the format defined in paragraph 1, step1, of the summary of argument filed with this application), for the proceedings listed below, be provided to the parties, free of charge, at least 14 days before the outline of the argument in the appeal is due to be filed by the appellant.
Relevant proceedings:
Federal Magistrates Court, Case No. SYM 8753 of 2006, [Roberts & Chisholm], before Sexton FM;Dates: 15 and 18 August 2008 and 3, 4 and 5 December 2008.
2.That the Case Stated, as agreed on by the parties, be passed for determination to the Full Court of the Family Court, irrespective of the outcome of the application in [1] above.
3.That the appellant be granted leave to adduce further evidence if after the review of the transcripts applied for in [1] above disclose a requirement for further evidence.
Today, before me, Mr Potkonyak, the mother’s solicitor, sought to amend the application to include an additional order sought, namely, that the mother be provided with the CD of the voice transcription of the proceedings of 15 August, 19 August, and 3, 4, 5 December 2008.
The mother relies on her affidavit in support of the application also filed on 9 February 2009. The affidavit is brief. Omitting the formal parts, the mother deposes:
I am the appellant / applicant in these proceedings. By the provisions of the Family Law Rules 2004 I am required to prepare the appeal books containing, among other documents, relevant parts of the transcripts of the record of the proceedings in the court below. I state that I am not in a position to fund the production of even a small portion of those transcripts.
I was a self-represented litigant in the proceedings below and appeared via telephone link. I had no assistance in those proceedings from any person and was not able to keep notes of what was being said during the trial.
I am not even in a position to produce an accurate index to the appeal books, since I believe that the transcripts will point to the need for further evidence which, at this stage, I cannot properly identify without transcripts.
The mother also relies on a written document produced by her solicitor and entitled “Summary of Argument (Application for Transcripts)”. I will return to discuss this document shortly.
The mother’s application is opposed by the father. The independent children’s lawyer (“the ICL”) represented by an agent, Mr Fernie, advises the Court that the ICL neither opposes nor consents to the application it being a matter for the Court.
I propose to deal with these applications by:
·first, considering the application in respect of a “case stated”;
·second, by consideration of the request to provide transcript;
·third, in relation to the oral application to provide the CDs; and
·finally, to deal with the application insofar as it deals with the proposed application to adduce further evidence.
I have had the opportunity of perusing the draft appeal index, and I also propose to make further orders to enable the conference appointed with the Appeal Registrar for 27 February 2009 to fulfil its purpose under the Family Law Rules 2004 (“the rules”).
In dialogue with Mr Potkonyak this afternoon I have discussed the fact that there is nothing that would preclude the appeal book index being properly provided and/or an appeal book being produced as Mr Potkonyak, being the solicitor on the record, can access the first instance file to identify the appropriate documents.
The relief sought in paragraph 2 of the application (case stated)
It is useful that I again refer to the relief sought in paragraph 2 namely:
That the Case Stated, as agreed on by the parties, be passed for determination to the Full Court of the Family Court, irrespective of the outcome of the application in [1] above.
In his written submissions in respect of the case stated the mother’s solicitor, Mr Potkonyak, in paragraph 5, sets out the proposed case stated as follows:
[1.] Are the children of the parents who cannot afford the cost of transcripts entitled to justice in the Family Court proceedings?
[2.] If “Yes”, what are the criteria for establishing whether a party or parties are entitled to transcripts free of charge or at some reduced cost and if so, how it is to be determined?
The law
Section 94A of the Family Law Act 1976 (Cth) is provision of the Act which enables a Judge (or a Federal Magistrate) together with one of the parties to state a case to the Full Court on a question of law which has arisen in the proceedings (my emphasis). The section provides as follows:
(1) If, in proceedings in a court, being proceedings in which a decree or decision to which subsection 94(1) or (1AA) applies could be made, a question of law arises which the Judge and at least one of the parties wish to have determined by a Full Court of the Family Court before the proceedings are further dealt with, the Judge shall state the facts and question in the form of a special case for the opinion of a Full Court, and a Full Court shall hear and determine the question.
(2) The Full Court may draw from the facts and the documents any inference, whether of fact or of law, which could have been drawn from them by the Judge.
(3) If, in proceedings in the Federal Magistrates Court, being proceedings in which a decree or decision to which subsection 94AAA(1) applies could be made, a question of law arises which:
(a) the Federal Magistrate; and
(b) at least one of the parties;
wish to have determined by a Full Court of the Family Court before the proceedings are further dealt with:
(c) the Federal Magistrate must state the facts and question in the form of a special case for the opinion of a Full Court of the Family Court; and
(d) a Full Court of the Family Court must hear and determine the question.
(4) The Full Court may draw from the facts and the documents any inference, whether of fact or of law, which could have been drawn from them by the Federal Magistrate.
(5) If, in proceedings in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia, being proceedings in which a decree or decision to which subsection 94AAA(1A) applies could be made, a question of law arises which:
(a) the Magistrate; and
(b) at least one of the parties;
wish to have determined by a Full Court of the Family Court before the proceedings are further dealt with:
(c) the Magistrate must state the facts and question in the form of a special case for the opinion of a Full Court of the Family Court; and
(d) a Full Court of the Family Court must hear and determine the question.
(6) The Full Court may draw from the facts and the documents any inference, whether of fact or of law, which could have been drawn from them by the Magistrate.
I am satisfied that today every party at the Bar table has been provided with a copy of that section.
“Proceedings” are defined in s 4(1) of the Act as follows:
"proceedings" means a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding.
The purpose behind the enacting of s 94A is very clearly explained by Evatt CJ and Butler J in Mullane & Mullane (1980) FLC 90-826. There their Honours explain:
The matter before us is a special case stated for the opinion of the Full Court under sec. 94A. That section applies where a question of law arises which the Judge and at least one of the parties wish to have determined by a Full Court before the proceedings are further dealt with.
Before considering the actual issues which arise in the present matter some observations should be made about sec. 94A. The use of this section can sometimes be an unsatisfactory way of resolving issues between parties to a matrimonial cause. Those issues are determined by the Full Court on the basis of a statement of facts agreed to by the parties or settled by the Judge. Those facts may differ in some ways from those which are ultimately established by the evidence; alternatively, there may be factual information omitted from the case which the Full Court may consider important to its decision. There must, of necessity, be additional delay and cost involved in stating a case to the Full Court.
The necessity for proceedings to be currently before the Court before a case can be stated is clearly explained in the decision of the Full Court in Daff & Daff (1984) FLC 91-516. In that matter the Full Court was asked to consider the case stated after completion of property proceedings between the parties. Evatt CJ, in her separate judgment, found the case stated was improperly brought and without foundation and said:
In my opinion, that section clearly means that a party must have made application to the Court for an order against another party or person also before the Court.
In the same matter Strauss J said:
I agree. There are no proceedings on foot to which sec. 94A of the Family Law Act 1975 applies. As the Chief Judge has pointed out, the proceedings must be proceedings in which an order could have been made to which sec. 94(1) applies; in other words, in which an appellate Court could reverse the order made. I have not overlooked, in saying what I am saying, the wide definition of “proceedings” in sec. 4(1) which says:
“... ‘proceedings’ means a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding.”
In this case, the proceedings, being proceedings in respect of which an appeal could be brought, were proceedings before Federal Magistrate Sexton. Those proceedings were concluded when her Honour made final orders on 19 December 2009. No application was made to her during the currency of the proceedings to state a case on a question of law to the Full Court. That being the case, I am satisfied the application in paragraph 2 of the application in an appeal is improperly brought.
I further note the proposed case stated relates to children generally, and not the child the subject of these proceedings.
I do not, therefore, need to consider whether the question sought to be stated by a judicial officer and at least one of the parties is a question of law. Accordingly, I propose to dismiss the application for a case to be stated to the Full Court.
Provision of transcript
Paragraph 1 of the application in an appeal seeks provision of the transcript of the proceedings and sets out the mode in which it is submitted transcript ought to be provided in the first instance. In the summary of argument the mother’s solicitor submits as follows:
Method of providing transcripts
Step 1: In order to reduce the total cost of the relevant parts of transcripts proposed to be included in the appeal books, it is submitted that, as the first step, an unedited “machine transcript” should be provided to the parties in a word doc (or similar) format on a CD.
Definition of “machine transcript”: a transcript produced by the voice recognition software (most probably already used by the transcript services), which will show the actual words spoken, as “understood” by the “machine”, including the identification of time when the words were spoken (say, in two or three minutes [sic] increments).
Machine transcripts so produced would not only save on the cost of the final transcript but would also save on the time required by the parties to identify the relevant parts of the transcripts by searching the key words. Further saving would be accomplished by the transcripts provider not having to search for the location of the relevant parts of the recordings: parties reviewing the CD will be able to point accurately to the date and time of the relevant parts.
Step 2: Once the parties and the court agree on which relevant parts of transcripts should be included in the appeal books, transcripts should be properly edited and formatted for the official publication, irrespective of who is to pay the cost.
The mother’s solicitor did not produce in support of this application any relevant documentation which would disclose to me that the Court is able to provide transcript in the form sought.
It appears to me that what is being sought initially is not the sound file which would enable the mother to listen to and identify those parts of the transcript which she could then request be typed and produced in hard copy. As I have already indicated, I am unable, without further documentation to support the application, to confirm the Court’s transcript provider is able to reproduce transcript as sought, in what is described as “Stage 1” in the submissions, or what type of editing, or by whom, is visaged in “Stage 2” of the submissions. But that is not the fundamental question to be determined in this application.
In his submissions the mother’s solicitor refers to a number of decisions of the Full Court which have dealt with transcript. Included in the cases referred to is the relatively recent decision of the Full Court (Bryant CJ, Boland and Stevenson JJ) in Forbes & Bream [2008] FamCAFC 189. In that judgment the Full Court referred to the question of provision of transcript at paragraphs 28 to 30 of its reasons:
28.From the inception of the operation of the Family Court in 1976, transcript has not been routinely provided to parties. The cost is not provided for in the budget of the Court, and the cost of doing so routinely, would impinge on other necessary expenditure for the proper operation of the Court. Thus in hearings of matters at first instance parties will be responsible for the cost of transcript if they wish to obtain it. However, the Court has from time to time judiciously provided transcript to parties where it is demonstrably in the interests of justice to do so. A common example is the provision of transcript of the evidence of an expert witness in a parenting case.
29.There is no legislative basis in the Family Law Act 1975 (Cth) or the Family Law Rules 2004 (“the Rules”) providing for such transcript to be made available by the Court. The Rules relating to appeals deal specifically with the obligation to provide a transcript. Rule 22.23 states that the “appellant or, if so ordered, the cross-appellant must arrange to obtain the relevant parts of the transcript of the hearing…”. In contrast, rule 22.24 enables the Court to order that the Appeal Registrar, rather than the appellant, prepare the appeal books, if “exceptional hardship” would otherwise be caused to the appellant. However, the note to rule 22.24 clarifies that even if the appellant is excused from preparing the appeal books because of “exceptional hardship”, the obligation remains upon the appellant to obtain the transcript of proceedings pursuant to rule 22.23.
30.It logically follows from the Rules that ordinarily the appellant should bear the cost of provision of the transcript at least in the first instance. This has certainly been the case in practice in appeals heard in this Court. However, in this case the father states that he is impecunious and cannot afford to obtain a transcript so as to comply with the Rules. The question then is whether this Court has a residual discretion to order provision of a transcript at the Court’s expense in such circumstances.
Later, at paragraph 35 – 36, the Full Court said:
35.If the interests of justice require it, and the appellant or cross-appellant or party seeking it cannot afford the cost of transcript, the Court may in the exercise of its discretion agree to provide the transcript of relevant parts to enable the appeal to proceed. In Fortnum & Fortnum (No 2) [2008] FamCAFC 73 Finn J described this as part of the “supervisory role of the Full Court”. We would add to her Honour’s explanation the “supervisory power of the Court” may necessarily, in a particular case, require the Court to have transcript to fulfil its statutory function under s 94(2) of the Family Law Act. Thus the Court hearing an appeal may order the provision of transcript as an exercise of its incidental powers.
36.We do not need to define the circumstances in which the discretion may be exercised. Suffice it to say that we doubt whether it would be exercised in anything other than exceptional cases. Furthermore, we consider that the vast majority of such cases will relate to parenting orders, where the necessity to arrive at a result in the best interests of the child may provide compelling reasons for transcript to be provided at the Court’s expense if the parties are impecunious.
At this point in time the only material that would enable me to determine whether this case was one where, in the interests of justice, transcript is essential to determine the appeal, is that contained in the mother's brief affidavit, the relevant portions of which I have set out already, and by reference to the mother’s proposed grounds of appeal and to her Honour's reasons for judgment. I do not have, at this stage, the Appeal Books which will contain the documents that were before the Federal Magistrate.
I accept that the mother’s Notice of Appeal in ground 3 raises an issue of procedural fairness. Although, as framed the ground of appeal does not appear to directly relate to asserted conduct to be sheeted to the Federal Magistrate. The mother does not, for example, assert in ground 3 that she applied to the Court for an adjournment and such an adjournment was improperly refused. It is not immediately apparent from grounds 1, 2 and 4, that the transcript is required to support those grounds. Ground 7, as pleaded, is not a proper ground of appeal.
I accept that if I was to determine the mother’s application for transcript adversely to her at this stage of the appeal process, could it afford an injustice to her. Her appeal rights in respect of any order made by me exercising my role in the appellate jurisdiction of the Court at this stage of the proceedings, is proscribed. I appreciate that requiring the mother to prepare her appeal without transcript may be unsatisfactory. At the present time I would sympathetically regard the mother’s oral application to have the CD ROMs of the sound recordings of the proceedings made available to her if such application was supported by the evidence before me.
Those sound proceedings, however, to come at a cost to the Court, and on the present material before me I am not sufficiently satisfied that the mother would not be able to afford the cost of obtaining the sound CDs if I so ordered. I am certainly prepared to order that those CDs may be ordered at the mother’s expense and/or the mother could bring a further application before me, supported by a statement of financial circumstances, to put before the Court in admissible form her inability to afford the cost of the sound files.
I am prepared to, and will, adjourn the mother’s application for hard copy of transcript to the Full Court listed to hear the appeal. In so doing I have regard to the interests of the parties involved in this appeal, and wider public policy considerations. I appreciate that that course may result in the Full Court having to adjourn the appeal or seek written submissions after the provision of transcript is ordered and that such a course would cause delay, costs and inconvenience to all parties. It is a process that is not ideal but it is the best that can be achieved in the circumstances.
The application to adduce further evidence
It is unnecessary that I determine this application as the rules make adequate provision for the filing of an application to adduce further evidence on appeal. Nothing in the mother’s affidavit suggests that any departure from the rules is necessary at this stage.
I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Jennifer Boland.
Associate:
Date: 13 February 2009
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