EARLES & HIGHSMITH
[2013] FamCAFC 84
FAMILY COURT OF AUSTRALIA
| EARLES & HIGHSMITH | [2013] FamCAFC 84 |
| FAMILY LAW – APPEAL - application in an appeal seeking provision of transcript at the Court’s expense or access to audio recordings of the trial at first instance |
| Family Law Act 1975 (Cth) |
| Forbes & Bream (2008) 222 FLR 96 M v M (1988) 166 CLR 69 Sampson & Hartnett (Provision of Transcript) [2010] FamCAFC 220 |
| APPELLANT: | Ms Earles |
| RESPONDENT: | Mr Highsmith |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| APPEAL NUMBER: | EA | 130 | of | 2012 |
| FILE NUMBER: | PAC | 3528 | of | 2008 |
| DATE DELIVERED: | 29 May 2013 |
| PLACE DELIVERED: | Sydney |
| DATE HEARD: | 16 May 2013 |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Ainslie-Wallace & Ryan JJ |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 October 2012 |
| LOWER COURT MNC: | [2012] FamCA 847 |
REPRESENTATION
| FOR THE APPELLANT: | Self-represented |
| SOLICITOR FOR THE RESPONDENT: | James Richardson Family Lawyer & Notary Public |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms M De Vere |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta Family Law |
Orders made 16 May 2013
That the appellant mother have leave to listen to the audio recording of the proceedings before Justice Collier on 20, 21, 22, 23 and 24 February 2012,
20 and 21 March 2012 and 28 and 29 June 2012, and be at liberty to make notes on paper or on a computer.
That order 1 is subject to the appellant executing a written undertaking that she will not by any means communicate, publish or disseminate to, or discuss with, or otherwise reveal to any person or entity other than a lawyer or Legal Aid, the content of the audio proceedings described in Order 1.
That the appellant’s applications in an appeal dated 15 November 2012 and 18 February 2013 seeking the provision of transcript otherwise be dismissed.
That the question of costs of the father and the Independent Children’s Lawyer is to be reserved to the Full Court upon the hearing of the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Earles & Highsmith has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 130 of 2012
File Number: PAC 3528 of 2008
| Ms Earles |
Appellant
And
| Mr Highsmith |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
On 15 November 2012 Ms Earles (“the mother”) filed an application in an appeal seeking provision of transcript at the Court’s expense or access to audio recordings of the trial at first instance. The application relates to appeal EA 130 of 2012 against the orders of Collier J made on 8 October 2012 in parenting proceedings between the mother, and Mr Highsmith (“the father”). The hearing of the matter occupied nine days conducted in three stages over a period of months.
At the conclusion of the hearing of the application, and, after discussion with the mother about the principles to be applied in determining such an application, the mother consented to an order that she be permitted to listen to the audio files of the transcript, subject to her giving an undertaking. We then dismissed the application and indicated that we would publish our reasons shortly. These are our reasons.
Background
On 8 October 2012, the trial judge ordered that the child of the parties, L (“the child”), who is now five and a half years of age, live with the father, who was ordered to have sole parental responsibility for the child.
The trial judge’s orders provided that after a period of one month, and in the event that the mother complied with a series of conditions which are not relevant for present purposes, the child spend time with her on the basis defined in considerable detail by the trial judge’s orders.
On 8 October 2012 the trial judge made a recovery order in relation to the child. The child was not delivered to the father pursuant to the trial judge’s orders of 8 October 2012, and had not been by 22 November 2012. The child was eventually passed into the father’s care on 27 November 2012 after police found the child in another state and they secured her return to New South Wales where she was placed in the care of the father in accordance with the trial judge’s orders.
The mother filed a Notice of Appeal on 9 October 2012 in which she sought orders setting aside the trial judge’s orders. She then sought a stay of the trial judge’s orders pending appeal to the Full Court. The application for stay was heard and dismissed by the trial judge on 17 October 2012. An amended Notice of Appeal was filed by the mother on 15 November 2012.
An application was then made that the Full Court expedite the mother’s appeal and stay the trial judge’s orders of 8 October 2012, notwithstanding that no appeal had been lodged from the trial judge’s refusal to grant the stay. It is apposite to here set out part of the reasons of the Full Court delivered on that application on 6 December 2012.
19. The respondent asserted on 22 November 2012 that the child was, with the knowledge and consent of the appellant, in the care of the appellant’s mother, the maternal grandmother. The evidence before the Court on 22 November 2012 did not establish where the child was. It was conceded that the child had not been delivered to the respondent.
20. On 13 November 2012, the appellant gave evidence before the trial Judge, in the course of which she said:
[MS EARLES]: Well, your Honour, I believe that [the child] is in the safe hands of somebody that I know.
HIS HONOUR: Who?
[MS EARLES]: I can’t give you who.
MR KENNY: Thank you, your Honour. So let’s examine what you’ve just told his Honour on your oath. That when you last saw your daughter she was in the care of your mother?
[MS EARLES]: Yes.
MR KENNY: And you now believe she’s in the safe hands of someone that you know? Is that what you told his Honour?
[MS EARLES]: I believe that - - -
MR KENNY: Is that what you told his Honour?
[MS EARLES]: Yes
MR KENNY: And – but you don’t know who those safe hands might be?
[MS EARLES]: Yes. And I believe that’s for protection – for protection reasons.
MR KENNY: Protection as you see is necessary; is that right?
[MS EARLES]: Protection on – that I don’t know of the whereabouts because there is an appeal in process.
MR KENNY: And do you still believe that if a stay had been granted on the last occasion then your daughter might have reappeared by now?
[MS EARLES]: Well, I believe that I would have and other people would have – would hopefully publicise if the court would allowed that a stay had been granted and that would indicate to her that it would – was that [the child] was no loner in danger. (Errors as in original)
21. The Court raised with the appellant’s solicitor as an “obstacle” to the success of her expedition application, the reluctance of courts to exercise the discretion to expedite proceedings when the party seeking such indulgence is in breach of the orders of the court. It is not in doubt that the appellant is in breach of the orders of 8 October 2012, which have not been stayed. Whether such breach constitutes contempt or a contravention without reasonable excuse is of no relevance for present purposes.
The Full Court dismissed the mother’s application for expedition of her appeal and to stay the trial judge’s orders.
Application in an Appeal
The mother’s application was filed on 15 November 2012. The application sought orders that she be provided with the transcripts of the hearing before the trial judge at the court’s expense or, in the alternative, that the court provide her with the audio recordings of the hearing, again at the court’s expense. She filed two affidavits in support of that application, one on 15 November 2012 and the second on 18 February 2013.
In her first affidavit, the mother deposed that she had no income, her entitlement to parenting payments having ceased on her no longer having the care of the child. She said:
9.I am currently receiving no income and do not have sufficient funds to purchase transcripts.
10.I have applied for legal aid, and as a requirement for merit, these transcripts are needed.
11.I would also need to instruct new solicitors who have not been affiliated with the matter in the past.
In her further affidavit of 18 February 2013, the mother states:
13.Since the making of the orders of 8 October 2012, my centrelink parenting payment was cancelled. I had to re-apply for income support payments, I was first placed on newstart allowance however I am now on Austudy as I am studying at university. …
14.I am unable to obtain employment on a full time basis due to grief and working predominantly on this appeal, subsequent contravention and schooling.
In this further affidavit, the mother asserts that she had no involvement in the removal of the child in breach of the trial judge’s orders and that she cooperated with the court and the police when the child’s whereabouts were not known to the father. In an affidavit in response to the mother’s application and to these assertions in particular, the father disputes the mother’s assertions. It is unnecessary to resolve this question for present purposes. The father indicated that the issue of provision of transcript was a matter for the court.
Provision of transcript
In her summary of argument on the application, the mother referred to decisions of this court, particularly that in Forbes & Bream (2008) 222 FLR 96. She argued that:
The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. (Submissions by the Applicant/ Appellant 8 May 2013 page 3)
This issue has been comprehensively considered in Sampson & Hartnett (Provision of Transcript) [2010] FamCAFC 220 where the Full Court said, referring to the previously decided cases:
14. Thus in a line of authority it has emerged that the absolute view once taken about the provision of a transcript by the Court has been replaced by a more flexible approach (Forbes & Bream (supra), Friscioni & Friscioni (Application for transcript) [2009] FamCAFC 48 and Trahn & Long (No. 2) [2008] FamCAFC 194). This approach would enable the Court to pay for a transcript where the interests of justice required the provision of transcript so an appeal could be adequately prosecuted.
15.However, a complete transcript may not be necessary for the prosecution of an appeal. Deciding this requires an examination of other factors relevant to the interests of justice in the particular case and more broadly. We mean by this that where resources are finite, the provision of transcript for a 14 day hearing where the merits of the appeal were doubtful, for example, might prevent the provision of transcript in other more deserving cases.
16.Although in Forbes & Bream (supra) the Court indicated that it did not need to define the circumstances in which the discretion of the Court to provide the transcript at its expense should be exercised, it seemed to us that it would be of assistance to the applicant in this case to have some indication of the matters about which she would need to satisfy the Court in support of her application. We did so cognisant of the fact that this is a discretionary decision which will require consideration of the circumstances of each case and that the matters relevant to exercise of discretion cannot be circumscribed. However, there will be common factors identifiable in many such cases. We thought it would be helpful to identify these whilst acknowledging the weight to be attributed to any particular factor will vary from case-to-case. While the list of factors is not closed, those that we think may be of relevance in support of such an application are:
(a) Whether the case is a financial or parenting case.
(b) Whether the whole transcript or part thereof is necessary for the determination of the appeal or part of the appeal.
(c) The likely cost of the relevant transcript and whether the applicant can afford all or part of the cost of the transcript.
(d)The proportionality of the cost of the transcript to the appellant’s anticipated costs in relation to the whole appeal, including the preparation of the appeal book(s).
(e) The prima facie merits of the appeal.
(f) Whether the question of providing a transcript can be left to the Full Court hearing the appeal.
(g) Any other relevant facts or circumstances.
17.In including in this list the merits of the appeal, we observe that such consideration is not uncommon in procedural or interlocutory issues relating to appeals and arises in circumstances, for example, where a party seeks security for costs, an extension of time or a substantial period of adjournment, to name a few. We also observe that while, for example, a refusal to extend time in which to appeal will mean that the applicant will be precluded from pursuing an appeal, a refusal to provide transcript will not have the same effect.
18.In addition, the Full Court hearing the substantive appeal is itself not precluded from ordering the provision of transcript should different circumstances or facts emerge from those presently before us.
At the commencement of the hearing of the application, the Full Court provided a copy of this decision to all parties.
We thus turn to consider such of these factors as are relevant in this matter:
Parenting case
The matter before the trial judge concerned parenting orders for a child, who at the time of the hearing, was four years old. The focus of the trial was the mother’s allegations that the father had sexually abused the child and that he continued to act inappropriately with the child even while his time with her was supervised.
Obviously then the issues determined by the trial judge were serious and required resolution of those issues bearing in mind that the best interests of the child are paramount.
Likely costs of relevant transcript
We observe that the hearing occupied nine days over a period of time. A number of both lay and expert witnesses gave evidence in that time.
No evidence was put before the Full Court as to the likely cost of the transcript although we can safely assume it would involve considerable expense given the duration of the hearing.
Whether the applicant can afford the transcript
The mother asserts that she has no funds and is not working. Such income as she receives is in the form of a government benefit. Although the father contended that she had not provided any documentary support for her claim, Mr Richardson, the father’s solicitor conceded that the mother would find it difficult to fund the provision of the entire transcript.
We are prepared to accept for the purposes of this application that it would be difficult for her to find the funds necessary to pay for the whole of the transcript of the hearing before the trial judge.
The prima facie merits of the appeal
As we have indicated, the issues before the trial judge primarily related to the mother’s allegations that the father had sexually abused the child in a number of ways. The father denied he had behaved in the way alleged.
The trial judge’s reasons comprehensively set out the allegations and issues to be determined in the trial and the evidence relied on by both parties. In addition to the evidence of the parties and lay witnesses, the trial judge had the benefit of two reports by experts, Dr R and Dr K. Although Dr R had produced a report after interviews with the parties on an earlier occasion, on the mother’s application, objecting to his continuation in the matter, Dr K was engaged to interview the parties and other relevant people and prepare a report. He was provided with the report of Dr R as part of the background material given to him.
The trial judge set out each alleged incident of sexual abuse and carefully analysed the evidence of the witnesses on the topics. He analysed the evidence of each witness and assessed credibility where relevant. He found that the child had from time to time made comments suggestive that events occurred and that her father had done things to her. However, he found that the child’s remarks, given against a background of the mother’s dislike of the father and His Honour’s finding that the child was well aware of this dislike, did not establish that the father had been sexually inappropriate with the child (see [474]).
His Honour considered the authorities both in this court and others on the level of satisfaction necessary before making positive findings about serious conduct and what was said by the High Court in M v M (1988) 166 CLR 69. His Honour concluded at [491] that an unacceptable risk of sexual abuse was not made out.
The trial judge then turned his attention to the provisions of the Family Law Act 1975 (Cth) (“the Act”) and s 60CC(2) in particular and considered the relevant sections against his findings on the evidence before him. His Honour found at [551] that the mother will continue to maintain that the father has sexually abused the child and that this belief will continue to be a consuming part of the mother’s life. His Honour concluded at [552] that if the child continued to live with the mother, the child will have very little time with the father, perhaps to the point of him being eliminated from her life. The trial judge found that in living with the father, the child will be able to have the benefit of both parents participating in her life.
His Honour acknowledged that his conclusion, which was based on all of the evidence before him, was not in accordance with the view of the expert,
Dr K. He found that the mother’s position in relation to the father would not change and that the only way the child could develop and have the benefit of a relationship with both parents is if she lived with the father (see [558]).
Being concerned to provide time for the child to spend with the mother, the trial judge considered that, for a time, the contact between them should be supervised. He proposed that the mother engage with therapeutic assistance to help her deal with the outcome of the proceedings.
It is against this brief summary of the trial judge’s reasons and findings that we consider the asserted grounds of appeal. The mother propounds 17 grounds of appeal. They appear to relate to certain issues and we will consider them in that way.
Bias and failure to afford procedural fairness (grounds 2 and 10)
Grounds 2 and 10 of the mother’s Further Amended Notice of Appeal filed 12 December 2012 provide:
2. An independent, intelligent, reasonable observer is likely to conclude that his Honour prejudged the case.
10. That the appellant mother did not receive a fair trial.
In argument the mother found it difficult to articulate in what way the trial had been conducted in an unfair way or that the trial judge had prejudged the issues. The mother conceded that at no time during the hearing before the trial judge had she raised any issue of unfairness or asserted prejudgment.
It is difficult to determine what the basis of these grounds is and, whether transcript would be required to enable them to be argued.
Failure to give reasons (ground 5)
Ground 5 of the mother’s Further Amended Notice of Appeal provides:
5. His Honour failed to fully disclose steps taken in his Honour’s reasoning process.
The trial judge’s reasons are detailed and lengthy. That of course does not mean that a successful challenge to the decision on the basis of a failure to give reasons cannot be made. However we do not see how the provision of transcript would assist the mother in mounting this challenge. The judgment will either reveal the trial judge’s reasoning process or not. Transcript is not necessary to make this argument.
Errors in attributing weight to the evidence and errors in the exercise of the trial judge’s discretion (grounds 1, 3, 4, 6, 7, 8, 9, 11, 10, 12, 13, 14, 15 and 16) (numbering as in original)
Grounds 1, 3, 4, 6, 7, 8, 9, 11, 10, 12, 13, 14, 15 and 16 of the mother’s Further Amended Notice of Appeal provide:
1.Exercise of discretion by the Trial Judge, the Hon Justice Collier (“his Honour”), with respect to giving weight to evidence relied on by the parties, miscarried.
3. His Honour allowed extraneous factors to infect his Honour’s judgment.
4.His Honour’s conclusions and orders are so unreasonable that no reasonable decision-maker could have arrived at such conclusions and orders.
6. His Honour failed to give proper weight to the relevant factors enumerated in s 60CC of the Act, thus failing to make orders in the best interest of the child.
7. His Honour erred in concluding that the mother’s concern re disclosure by [the child] of her father “hurting” her was not bona fides concern and, consequently made orders that are not in the best interest of the child.
8. Alternative to ground 7 above, it was open to his Honour to find that [the child] would be exposed to an unacceptable risk of harm if she were to spend substantial unsupervised time with the father before she is old enough to verbally express herself in a manner acceptable to JIRT.
9.His honour erred in taking into account evidence not properly before him.
11. His honour erred in taking into account evidence of misapprehension of fact, in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant.
10. His honour was in error in the exercise of his discretion in that he failed to place sufficient weight upon the combined effect of the deficits in the father’s parenting capacity. (Numbering as in original)
12. That his Honour failed to take into account and give proper weight to the evidence of the chapter 15 expert by [Dr K].
13. His honour failed to properly evaluate: The competing proposals as to where the child should reside.
14. His honour erred in the impact to the child with change of residence.
15.That his honour erred in:- Finding in his judgment dated 8 October 2012, that the only way that the child would have a meaningful and substantial relationship with both her parents was for her to live with the father.
16. His Honour erred in not accepting the mother’s evidence or the evidence of anyone associated to the mother.
As can be seen the principal thrust of the mother’s appeal against the trial judge’s decision rests on challenges to the exercise of His Honour’s discretion.
The trial judge identified the issues for his determination, the evidence and drew conclusions based on the evidence and his determination of the issues, some of which were credit findings in relation to witnesses who had appeared before him. As part of that analysis, the trial judge set out the evidence of each witness including answers given in cross examination. The reasons provide a very significant overview of the evidence.
Challenges to the exercise of a trial judge’s discretion are difficult to mount successfully as are those impugning a trial judge’s credit findings. However, the mother is at present unrepresented and apparently drafted the grounds herself. Ultimately she may obtain representation and amend or refine the grounds so that there is a more obviously arguable case and it would in our view be premature to come to a view that the appeal as it might ultimately be argued is untenable. Nonetheless the grounds as drafted will influence the decision as to whether there is a need for a full transcript to be provided at the expense of the court. Other than ground 11, which complains about errors of fact but is devoid of particulars, it is not apparent how the provision of transcript would assist the mother in making out the challenges.
It thus appears that none of the grounds of appeal as presently appear in the Further Amended Notice of Appeal requires the transcript to enable it to be argued.
The proportionality of the costs of the transcript
While there may be parts of the transcript to which the mother could take the court in the argument on the appeal, we are unable to see that the benefit of having such parts could outweigh the cost of the provision of the transcript. In any event, the Full Court hearing the appeal can, if it wishes, order parts of the transcript should the members of that bench form a different view.
Other relevant matters
While not explicitly said, the mother’s affidavit implied that in order to assess the merit of her proposed appeal and thus the provision of legal aid, Legal Aid had indicated to her that a transcript must be provided. Although she agreed that during a procedural hearing she informed the Appeals Registrar that she had been told by Legal Aid that she must obtain the transcript before her application for further aid could be considered, she said that she had not been given that advice but that she had been told that a transcript would be helpful to her on the appeal.
During the course of the argument, the court discussed with the mother the option of her listening to the audio files of the court proceedings and identifying parts of the transcript that support her grounds of appeal or any amended grounds of appeal. It may be that after having listened to the audio files, the extracts required by the mother are sufficiently minor as to be affordable for her. We also explained that if after she had listened to the audio files she could identify parts that were relevant and necessary to a particular ground, rather than seeking the whole transcript a further application would still be possible.
The mother agreed to the course of listening to the audio files, and sought an order that she be able to make notes on her computer. Subject to her giving an undertaking as to the use to which the notes would be made, that order was made.
Costs
Both the father and the Independent Children’s Lawyer are in receipt of Legal Aid, and both sought an order for their costs if the mother’s application was unsuccessful.
We ordered that the costs of those parties be reserved to the Full Court on the hearing of the appeal.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Ainslie-Wallace & Ryan JJ) delivered on 29 May 2013.
Associate:
Date: 29 May 2013
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