Fortnum & Fortnum (No 2)

[2008] FamCAFC 73

FAMILY COURT OF AUSTRALIA

FORTNUM & FORTNUM (NO. 2) [2008] FamCAFC 73

FAMILY LAW - APPEAL – Transcript – Order providing appellant and all parties to the appeal with copies of transcript where clear from trial Judge’s reasons for judgment that he had available a transcript when preparing his reasons for judgment and in circumstances where the Full Court became aware that an electronic version of much of the transcript was available to the Court and appellant had made previous applications to be provided with transcript.

APPELLANT: Mr Fortnum

RESPONDENT: Ms Fortnum

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: SYF 631 of 2002

FIRST APPEAL NUMBER: EA 66 of 2006

SECOND APPEAL NUMBER: EA 18 of 2007

DATE DELIVERED: 14 March 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Finn, Warnick and Boland JJ

HEARING DATE: 14 March 2008

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 16 June 2006

LOWER COURT MNC: [2006] FamCA524

REPRESENTATION

COUNSEL FOR THE APPELLANT: Appellant appeared on his own behalf

COUNSEL FOR THE RESPONDENT: Mr Moss

SOLICITOR FOR THE RESPONDENT: DGB Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Ward

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Roberston Solicitors

Orders

1. That the Appeal Registrar provide to each of the appellant father, the solicitor for the respondent mother and the Independent Children’s Lawyer the full transcript of the hearing on 1 – 5 March 2004, 1 – 2 April 2004 and 5 July 2004 before the Honourable Justice Cohen in hard copy under cover of a dated memorandum.

2. That within twenty-one (21) days of the date on the covering memorandum of the Appeal Registrar (referred to in Order 1 of these orders), the appellant file in the Eastern Regional Appeals Registry in Sydney and serve on the solicitor for the respondent mother and the Independent Children’s Lawyer an amended Notice of Appeal and Summary of Argument.

3. That within twenty-one (21) days of the service of the appellant father’s Summary of Argument, the solicitor for the respondent mother and the Independent Children’s Lawyer file in the Eastern Regional Appeals Registry in Sydney and serve on all other parties a Summary of Argument.

4. That following the filing of the Summaries of Argument for the respondent mother and Independent Children’s Lawyer, the Appeal Registrar shall list the appeal for hearing before the Full Court at the next available hearing with all possible expedition.

5. That the costs of this day be reserved as costs in the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Fortnum & Fortnum is approved 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 66 of 2006; EA 18 of 2007
File Number: SYF 631 of 2002

TIMOTHY FORTNUM

Appellant

And

MICHELLE FORTNUM

Respondent

REASONS FOR JUDGMENT

1. FINN J:  In this appeal (which is against parenting orders made by Cohen J on 16 June 2006, and which is listed for hearing before the Full Court today), there was a two-year delay between the trial (of some 8 days) before Cohen J and the making of the orders and the delivery of his Honour’s reasons for judgment.    As we understand the appellant's challenges to his Honour's orders, those challenges would include the issue of the delay in the delivery of the judgment. 

2. We are aware that in the preparation of the appeal for hearing, there has been an issue concerning the appellant’s capacity to provide transcript of the trial. His Honour’s reasons for judgment show that he had the advantage of transcript, or at least part of the transcript, of the hearing before him when he prepared his judgment. We became aware late yesterday of the existence of transcript, at least in electronic form, of much of the trial. (In other words, a transcript, or much of it, has previously been typed and is currently available to the Court in electronic form).

3. We consider that as part of the supervisory role of the Full Court, we need the benefit of the transcript, and indeed the entire transcript, of the proceedings before his Honour in order to properly consider whether justice was done in this case.  For these reasons and in the very unusual circumstances of this case, we consider that the Court should provide the entire transcript of the hearing before Cohen J to all parties in this appeal.

4. We make it clear that this decision is made without a determination of whether there is power in the Court to order the preparation of transcript (in the sense of the initial typing or transcription of the content of the recording of the trial) for an appellant, or whether the Court should as a general rule so order.  What distinguishes this case is the fact that we became aware late yesterday (against the background of previous applications by the appellant to be provided with the transcript) of the existence of much of the transcript in electronic form.  It is only a matter of printing the electronic version of the transcript (at least of most of the trial). 

5. Having weighed up the options available to us against the background of our decision that there should be transcript provided in this case, we consider that the more efficient course is, regrettably, to adjourn today's hearing of the appeal pending receipt of transcript (in paper form).  The alternative course would have been to endeavour to proceed to hear the appeal (without the transcript) and then either reconvene or receive written submissions in light of the transcript.  That would ultimately be, in our view, a less efficient course.

6. WARNICK J:  I agree with the reasons that her Honour the learned presiding Judge has given.

7. BOLAND J:  I too agree with the reasons given by the learned presiding Judge.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate: 

Date:  2 June 2008