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…

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.

Continue reading Finch & Shibo (No. 2)

Details

AGLC: Finch & Shibo (No. 2) [2016] FamCAFC 108
Case: [2016] FamCAFC 108
Decision Date: 7 June 2016

CaseChat Overview and Summary

The appeal before the Family Court of Australia was brought by Mr Finch against Ms Shibo. The appeal concerns the parenting orders made by the Family Court of Australia in the lower court proceedings. The appeal was heard by Thackray, Ainslie-Wallace and Ryan JJ in Brisbane. The main issue the court needed to decide was whether the court should provide, at its own expense, transcripts of the trial that led to the orders that are now being appealed. This application was made by the appellant, who was represented pro bono by Mr Page QC.

The court considered the factors in Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 in deciding whether to order the transcript. These factors included whether the case was a financial or a parenting case, whether the whole or only part of the transcript was necessary for the determination of the appeal, the likely cost of the transcript and whether the applicant could afford all or part of it, and the proportionality of the cost of the transcript to the appellant’s anticipated costs in relation to the appeal. The court also considered the interests of justice and the potential stress and anxiety that would be caused to the parties and the child if the determination of the matter was further delayed.

The court found that the provision of the transcript was not necessary for the determination of the father’s complaints. The court noted that 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 had not done so. The court also noted that ordering the transcript would cause further stress and anxiety for the parties and the child, and that the interests of justice required the matter to be completed as soon as possible.

The court dismissed the Applications in an Appeal and declined to order the transcript. The formal order of the court was that the Applications in an Appeal be dismissed.

Orders