Finch & Shibo (No. 2) - [2016] FamCAFC 108

FAMILY COURT OF AUSTRALIA

FINCH & SHIBO (NO. 2)

[2016] FamCAFC 108

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – The appellant seeks that the court pay for a transcript of the trial – The court is not funded to obtain transcript for parties – Consideration of the factors in Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 – Applications dismissed.

Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542

APPELLANT:

Mr Finch

RESPONDENT:

Ms Shibo

INDEPENDENT CHILDREN’S LAWYER:

Bruce Scott

FILE NUMBER:

BRC

2788

2009

APPEAL NUMBER:

NA
NA

56
85

of
of

2015
2015

DATE DELIVERED:

7 June 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Thackray, Ainslie-Wallace & Ryan JJ

HEARING DATE:

7 June 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

21 August 2015

16 November 2015

LOWER COURT MNC:

[2015] FamCA 690
[2015] FamCA 1059

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Page QC

SOLICITOR FOR THE APPELLANT:

Not applicable

COUNSEL FOR THE RESPONDENT:

Mr White

SOLICITOR FOR THE RESPONDENT:

Suncoast Community Legal Centre

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Shoebridge

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Parker Family Law

Order

The Applications in an Appeal be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Finch & Shibo (No 2) 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 BRISBANE

Appeal Number: NA 56 & 85 of 2015
File Number: BRC 2788 of 2009

Mr Finch

Appellant

And

Ms Shibo

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Thackray J

Listed for hearing today are two appeals by Mr Finch (“the father”). One of them relates to substantive parenting orders (NA 56 of 2015), and one relates to an interlocutory proceeding (NA 85 of 2015). The appeal relating to the interlocutory proceeding is not pressed today. The other is pressed, and the amended Notice of Appeal filed on 16 October 2015 contains four grounds of appeal. These grounds of appeal, which were prepared by a legal practitioner and are comprehensible, replace the far more extensive grounds of appeal originally provided by the father, which were less comprehensible.
Mr Page QC appears pro bono for the father, and has pressed Applications in an Appeal filed during the course of the proceedings, although he does not have those applications in his brief. In essence, the only part of those applications that is pressed is for the court to provide, at the court’s expense, transcripts of the trial before Forrest J on 13 and 14 August 2015, which led to the orders that are the subject of the appeal. At the trial, both the father and the respondent mother, Ms Shibo, appeared in person, and the Independent Children’s Lawyer was represented by counsel (although not counsel who is appearing today).
The practitioner who prepared the amended Notice of Appeal has, without the benefit of transcript, been able to fashion four grounds of appeal challenging the essential parts of his Honour’s reasons. However, Mr Page now tells us that he is concerned about advising the father, because he has not had the benefit of looking at the transcript. In particular, he has referred to the fact that the judge clearly set out, at the outset of the proceedings, three areas that were to be the subject of litigation, given that the father was subject to a restriction not to commence further proceedings without leave of the court.
The mother was not so restricted, and her response to the father’s initiating application sought an order for sole parental responsibility and it also set out her proposals for handover. Handover was a major matter of contention between the parties in the period leading up to the trial, to the extent that the father failed to avail himself of time with the child from October 2014 as a result of his opposition to an interim order relating to the place of handover.
The orders that the trial judge ultimately made extend beyond the issues that were identified at the outset of the proceedings. The time the father was to spend with the child, which up until then was meant to have been on alternate weekends, ended up being changed to four nights during each of the school holidays, save for the Christmas holidays when he had two sets of four nights. There is no doubt that this was a significant variation of the orders, and it is a matter about which the father now complains.
However, the reason why the trial took this unexpected turn is readily apparent from [37] and [41] of the trial judge’s reasons. The father was insistent that he would not be having the weekend time if the handover place remained as it was. By the end of the trial, the father was himself proposing a variation of the time so that he would spend time during school holidays rather than on weekends. It is therefore clear why the trial extended beyond the issues that were earlier identified.
It was once the almost universal practice in this court that transcript would not be provided at the request of an appellant. As Ryan J has pointed out, the court is not funded to pay for transcript for appellants. That practice has been ameliorated over time to some limited extent, as has been explained in Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542. That case has identified some factors that a court may take into account in determining whether or not transcript will be ordered.
Those factors, in my view, are of relevance in determining whether the court should exercise the discretion to provide transcript. However, the Full Court made clear in that case, and in others that have followed, that it is still an exceptional arrangement for the taxpayer to pay the costs associated with an appellant obtaining transcript to use in agitating their appeal.
The first of the factors that the Full Court has indicated should be taken into account is whether the case is a financial or a parenting case. If it is a parenting case, then the court may be inclined to look more favourably on the request than it would be if the subject matter was purely money. That factor therefore supports providing transcript in this matter.
The second matter is whether the whole of the transcript or only part of it is necessary for the determination of the appeal or part of the appeal. Speaking for myself, I have difficulty in seeing how the provision of transcript would support grounds 2, 3 and 4, which were the grounds that Mr Page indicated might be supported if transcript was available. More significantly, neither the respondent nor the Independent Children’s Lawyer has indicated that the absence of transcript is causing them any difficulty in responding to the appeal. These matters indicate that these grounds will not be advanced by the provision of transcript.
Mr Page has nevertheless said that he is uncomfortable in advising the father as to whether to proceed with the appeal without the benefit of the transcript. Whilst one can readily understand the position in which Mr Page finds himself, as best I can apprehend the argument, he wishes to have an opportunity to examine the transcript to determine whether there is any other arguable ground of appeal. Speaking for myself, I do not consider that to be an appropriate basis for a Full Court to order transcript.
I say that particularly in the circumstances of this case, where for good reason, this issue about transcript was not determined in advance of the hearing of the appeal. The logical consequence of success of this application is that the appeal will be put off to another day. This would not only cause inconvenience and expense to all involved and the court, but it would also cause inconvenience to another family whose case would be put off to accommodate the father’s appeal in a further sitting. In those circumstances, I am not satisfied that the provision of the whole or part of the transcript is necessary for this court to determine the father’s complaints.
The third matter to take into account is the likely cost of transcript and whether the applicant for the transcript can afford all or part of it. We do not have available a detailed estimate of the cost, but I accept that the cost of a two-day transcript is very expensive, and I accept, on the information that the father has provided to us ,that he is in straitened financial circumstances and would have difficulty in affording the cost of the transcript. However, the father could have availed himself of the cheaper alternative of listening to the audio recording of the trial to identify an arguable ground of appeal or identify a portion of the transcript that might support his argument, and he has not done so. Therefore, although the likely cost of transcript is significant, it does not, in my view, outweigh what I have already said in relation to the benefit (or lack thereof) to the appellant of having a transcript available.
The next matter is the proportionality of the cost of the transcript to the appellant’s anticipated costs in relation to the appeal. Here, the cost of transcript is a significant matter because the appellant is represented pro bono.
The next matter is the prima facie merits of the appeal. I think, the less said at this stage about that topic the better, given we are yet to hear the argument of Mr Page in relation to the grounds of appeal.
The next matter is irrelevant, being only a consideration to take into account when the court is hearing the application for transcript prior to the date allocated for the hearing of the appeal itself.
The final matter is whether there are any other relevant facts or circumstances. The only matter that comes to mind is that this family has been involved in litigation for many years. If we order transcript, we must allow an adjournment and put off the determination of this matter for perhaps six months or so until a spot becomes available in the Brisbane sittings. This would cause further stress and anxiety, perhaps for the appellant himself, but I would anticipate also for the respondent and therefore indirectly for the child.
The interests of justice require the matter to be completed as soon as possible and, for all of those reasons, I would decline to order the transcript.

Ryan J

I agree with the orders proposed by Thackray J and the reasons for them.

Ainslie-Wallace J

I also agree.

Thackray J

The formal order of the court will therefore be that the Applications in an Appeal be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Ainslie-Wallace & Ryan JJ) delivered on 7 June 2016, edited to correct grammar and some infelicity of expression.

Associate:

Date: 24 June 2016