Fortnum and Fortnum (No. 3)

[2007] FamCA 1647

FAMILY COURT OF AUSTRALIA

FORTNUM & FORTNUM (NO. 3) [2007] FamCA 1647

FAMILY LAW - APPEAL – transcript – application to dispense with Rules that require the appellant to provide transcript as part of the appeal book – order that appellant be permitted to listen to an electronic version of the transcript to determine which parts are required for the purpose of the appeal – order that appellant file an application and affidavit in the event he sought that the Court meet the cost of procuring any relevant transcript

Family Law Rules 2004

M v M (2007) 36 Fam LR 97

Monie v the Commonwealth [2005] NSWCA 25

APPLICANT: Mr Fortnum

RESPONDENT: Ms Fortnum

INDEPENDENT CHILDREN’S LAWYER: Robertson's Solicitors

FILE NUMBER: SYF 631 of 2002

APPEAL NUMBER: EA 18 of 2007

DATE DELIVERED: 21 August 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Bryant CJ, Kay and Warnick JJ

HEARING DATE: 21 August 2007

LOWER COURT JURISDICTION: Family Court

LOWER COURT JUDGMENT DATE: 16 June 2006

LOWER COURT MNC: [2006] FamCA 524

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Moss

SOLICITOR FOR THE RESPONDENT: DGB Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Anderson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robertsons Lawyers

Orders

1. At the Court’s expense each of the parties and the Court be provided with a CD-ROM copy of the evidence and submissions of the hearing before the Honourable Justice Cohen and if requested, the appellant father be provided with the facilities to listen to the CD-ROM.

2. If the appellant father wishes the Court to meet the cost of any relevant transcript he must, within 28 days of the provision to him of the CD-ROM, file and serve upon the legal representatives for the respondent mother and the Independent Children’s Lawyer an application supported by an affidavit setting out:-

   (i)the passages of the transcript he wishes to have transcribed by reference to the date and time of the evidence;

   (ii)explain the relevant of the passage of evidence to the grounds of appeal; and

   (iii)set out the reasons why he seeks to have the Court provide the transcript.

3. This matter be listed before the Honourable Justice Boland on 22 October 2007 at 10:00am for determination of any application filed pursuant to Order 2 above and for re-listing before the Full Court for the hearing of the appeal.

4. The solicitors and counsel appearing on behalf of the respondent mother and Independent Children’s Lawyer be at liberty to appear by telephone before the Honourable Justice Boland on 22 October 2007.

5. The costs of each party be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Fortnum & Fortnum (No 3) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:                   SYF 631 of 2002
APPEAL NUMBER:            EA 18 of 2007
  EA 66 of 2006

Mr Fortnum

Applicant

and

Ms Fortnum

Respondent

and

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. BRYANT CJ:  In this matter we are dealing with an appeal against the decision of Coleman J delivered on 16 June 2006.

2. The appellant is the father in the proceedings and in addition to his Notice of Appeal he has lodged an Application in a Case in which he seeks an order that the Court dispense with the Rules which require an appellant to provide transcript as part of the appeal book and for the Court to provide that transcript.

3. He contends that dispensation with the Rules is necessary because he does not have the financial capacities to pay for transcript for a hearing conducted over many days, but that the transcript is necessary having regard to his grounds of appeal, including the ground that alleges bias on behalf of the trial judge.

4. On consideration of that application this morning the father, sensibly in my view, conceded that what he really needs to assist him at this stage is the capacity to listen to the transcript by some electronic means, and thereby to isolate and determine what parts of the transcript, if any, he requires to be made part of the appeal books in order to assist him the prosecution of his appeal.  He was aware that there was some capacity to make this available to him but submits that it was at a cost which he was unable to meet.

5. The respondent, while not consenting to the father’s application, in my view did not seriously oppose the provision of some assistance that were within the power of the Court.  That being so, I do not need to deal with the question at this stage as to whether the Court has power to provide for transcript as was alluded to in Andrews & Andrews (Re: Subpoena) , a decision of the Full Court reported at (2007) 37 Fam LR 358.

6. In my view in the interests of justice in this case some assistance should be provided to the appellant father to enable him to listen to the transcript.  There are some unusual and indeed unique features of this case that would persuade me to that view.  They include the following:

   a)that the judgment took almost two years to deliver

   b)that the nature of the allegations against the father and the expert evidence that was given was such that there were findings to be made on the basis of the oral evidence and the cross-examination and his Honour did make findings

   c)that there were issues in findings of credit, and

   d)that the ultimate result was that the father was denied any contact of any kind with his son in the best interests of the child.

7. When taken together, in my view, this is a case on its own facts but which on my view requires that some assistance be provided to the father to listen to and endeavour to identify the material that he may wish to put before the Court.  I came to that view not so much because it will assist the father but rather because it will assist the Court.

8. In M & M, a decision of the Full Court which is reported at (2007) 36 Fam LR 97, the Full Court dealt with the question of delay. They cited, at para 79, from a previous decision of the Full Court of the Family Court in [H & H & O] [2001] FamCA 113, the passage from which said (at para 79):

   whilst we do not necessarily accept that the same considerations apply to proceedings in this Court as, for compelling reasons, apply to proceedings in Courts of criminal appeal, we have approach the issues in this appeal which involve challenges to the trial Judges findings of fact, drawing of inferences and reaching conclusions, with “the strictest of scrutiny”.

9. That comment was made in the context of delays in delivery of judgments.  In M & M (supra) the decision of the New South Wales Court of Appeal in Monie v the Commonwealth [2005] NSWCA 25 was also referred to. Again, in Monie v the Commonwealth (supra) the New South Wales Court of Appeal set out a number of considerations they thought were of relevance when considering an appeal in which the question of delay had become an issue. In particular they said (at para 43):

   If, after such delay, the trial judge has not given specific and satisfactory reasons in relation to accepting or rejecting evidence which is of importance in the appeal, and where there does not exist any indication in the transcript or the evidence which clearly explains the judge’s finding, the appellate court is obliged to give careful scrutiny and consideration to those findings.

10. It is for the purpose of the Full Court, in my view, giving careful scrutiny to the findings that I would permit or arrange and authorise some ability for the appellant to listen to the transcript and to identify those parts of it which might be relevant to the appeal and the grounds.  For the purpose of the practical arrangements, I would propose that he be provided with CD-ROMs and the facilities to listen to them.  If the father wishes the Court to meet the cost of any relevant transcript which he identifies that he file an application and affidavit setting out the passages he wishes to have transcribed by reference to the date and time of the evidence, explain the relevance of the passage to the grounds of appeal and set out the reasons why he seeks to have the Court provide the transcript.

11. The matter could then come back before Boland J, who has already made directions in the matter and is available in the Sydney registry for determination of any application for provision of transcript and then for re-listing to arrange the hearing of the appeal.

12. KAY J:  Whilst I remain not entirely convinced that the Court actually has power to make an order for provision of transcript, given that the very unusual circumstances of this case as identified by the Chief Justice I agree with the orders she proposes and have nothing further to add.

13. WARNICK J:  I agree with the orders proposed and with the reasons given by her Honour the Chief Justice and by his Honour Justice Kay.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Full Court

Associate: 

Date:  20 February 2008