Franchini and Moroni - [2012] FamCAFC 126

FAMILY COURT OF AUSTRALIA

FRANCHINI & MORONI

[2012] FamCAFC 126

FAMILY LAW ─ APPEAL ─ CHILDREN ─ Where the appellant father’s Appeal Book did not contain the transcript of the proceedings before the learned Federal Magistrate ─ Where without the transcript there was no basis upon which any of the appellant father’s complaints could find favour ─ Where the trial judge’s advantage over this Court in this appeal, of having seen and heard the witnesses give evidence, was even greater as not only did this Court not see or hear the witnesses give their evidence, it had no idea what was said because it did not have the transcript which recorded what was said ─ Not demonstrated that the father was unfairly disadvantaged at any time in the proceedings before the learned Federal Magistrate ─ Where the Court having read the learned Federal Magistrate’s reason for judgment, found that nothing emerged which would suggest that with or without the transcript, appellate intervention would be enlivened ─ Appeal dismissed.

FAMILY LAW ─ APPEAL ─ COSTS ─ Where without the transcript, the prospect of success of the appellant father’s appeal was at all times minimal or, as transpired, there was no prospect of success ─ Where to allow a situation where parties drawn into an appeal who have been wholly successful are left without any reimbursement would be difficult to reconcile with the interests of justice ─ Appellant father ordered to pay the costs of the respondent mother and the Independent Children’s Lawyer as agreed or assessed on a party and party basis.

Family Law Act 1975 (Cth) Part VII, ss 60CC, 117(2A)

Abalos v Australian Postal Commission (1990) 171 CLR 167
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621
Gronow v Gronow (1979) 144 CLR 513
Hontestroom v SS Sagaporack [1927] AC 37
House v The King (1936) 55 CLR 499
Lovell v Lovell (1950) 81 CLR 513
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588

APPELLANT:

Mr FRANCHINI

RESPONDENT:

Ms MORONI

INDEPENDENT CHILDREN’S LAWYER:

Tiyce & Partners Lawyers

FILE NUMBER:

PAC

4331

2008

APPEAL NUMBER:

144

2011

DATE DELIVERED:

13 August 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

HEARING DATE:

13 August 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

25 November 2011

LOWER COURT MNC:

[2011] FMCAfam 1261

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Self Represented

COUNSEL FOR THE RESPONDENT:

Mr Sansom

SOLICITOR FOR THE RESPONDENT:

Smythe Wozniak

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Anderson

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Tiyce & Partners Lawyers

Orders

That the appeal be dismissed.
That the appellant father pay the costs of respondent mother and the ICL as agreed or assessed on a party and party basis.

NOTE:

(i)That if the appellant father’s financial position is found by the Court or accepted by the other parties to be substantially limited, as suggested to this Court, then an instalment order with respect to the costs payable by the father would be appropriate.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Franchini & Moroni has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 144 of 2011

File Number: PAC 4331 of 2008

Mr FRANCHINI

Appellant

And

Ms MORONI

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

By Notice of Appeal filed on 15 December 2011, Mr Franchini (“the father”), appealed against orders made by Henderson FM on 25 November 2011 pursuant to Part VII of the Family Law Act1975 (Cth) (“the Act”) in parenting proceedings between the father, and Ms Moroni (“the mother”). The orders made by the learned Federal Magistrate limited the father’s contact with the parties’ seven (7) year old daughter to, forwarding “the child letters, cards and presents to an address nominated by the mother in writing.”
The proceedings were heard by the learned Federal Magistrate on 4, 5 and 6 October 2011. The mother resisted the father’s appeal, as did the Independent Children’s Lawyer, (“the ICL”).
The father’s Appeal Book does not contain the transcript of the proceedings before the learned Federal Magistrate. When the matter was set down for hearing on 24 April 2012, and directions were made for the Appeal Books to be prepared, the Court informed the father, as is its invariable practice, that whilst he could not be forced to procure and file a copy of the transcript of the trial, some of his grounds of appeal may be impossible to argue without a transcript, whilst others may be extremely difficult to argue in the absence of the transcript.
The submissions of the father this morning, consistent with those made by him on 24 April 2012, are that he was unable to afford the transcript for the purpose of preparing his Appeal Books. Whether that is so or not the Court has no way of knowing, and it does not change anything in any event.
Contrary to the father’s hopes, which he expressed several times during the course of his oral submissions to the Court this morning, the Court has no ability to in some way change, or ameliorate the operation of long-settled appellate principles in favour of a litigant-in-person who has not produced the transcript of the trial proceedings. Whilst, as the father submitted, as a litigant-in-person he is entitled to some latitude, that latitude does not extend, and cannot extend to, in effect, watering down the principles which govern the appeal.
As suggested to the father, the presumption that the trial judge’s decision is correct, which is enshrined in the laws of this country, and has been since at least the early 1950’s when the High Court reiterated that the presumption applied (see Lovell v Lovell (1950) 81 CLR 513, and Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at pages 626-627), would, in effect, be reversed in the circumstances of this appeal if, having regard to the nature of the father’s complaints, some or any of them were accepted in the absence of references to them in the transcript establishing such complaints. To uphold any of the father’s challenges would, in reality, be to simply proceed on the basis that because the assertion was made in the Notice of Appeal, it had to be accepted, notwithstanding that there was not any forensic basis for doing so.
The Court is not unsympathetic to the father, who, as he clearly recognised, is, and has been at a significant disadvantage, but this is a court of law and not a court of sympathy, and there is no scope for sympathy in the application of the legal principles in this appeal. That is not to say that sympathy for the father’s position as an unrepresented litigant implies that the Court considers or suspects that the father was “hard done” by the Federal Magistrate’s decision. Quite simply, without the transcript, as will briefly be demonstrated, there is no basis upon which any of the father’s complaints could find favour.
The father has not filed an Outline of Argument. That is unsurprising, given that, as his oral submissions confirm, in the absence of the transcript, he has been able to do no more than reiterate the terms of his grounds of appeal. In reality, although it would be, perhaps, unrealistic to expect the father to realise that it was so, or accept that it was so if he did realise it, that really only demonstrates just how fatal to an appeal of this kind the absence of the transcript is.
In response to a submission by the father, the Court endeavoured to explain, by reference to exaggerated examples, the ways in which an appellant might successfully challenge a discretionary judgment such as that of the learned Federal Magistrate in proceedings such as those determined by her Honour, they being parenting proceedings without the benefit of the transcript. Such examples involved material errors of fact which were demonstrable without reference to anything other than the reasons for judgment. Two examples which were referred to were the time it takes to drive between Canberra and, for argument’s sake, Cairns; the other an error by a decade as to the age of the child.
As is apparent from the father’s grounds of appeal, and his oral submissions, none of his challenges falls into that category. Whilst it is, perhaps, unsurprising that the father did not agitate a complaint with respect to the adequacy of the learned Federal Magistrate’s reasons for judgment, that category of appeal, which might be demonstrated successfully without reference to a transcript, clearly does not arise in this case.
It is not in doubt, either by virtue of the submissions of the father and the topics there raised, or by reference to her Honour’s comprehensive and closely-reasoned judgment, that, whether her Honour’s decision was correct or not, the reasons which led to it were undoubtedly adequately explained.
It is not helpful to refer to each of the father’s grounds of appeal. As the transcript of the hearing of the appeal would confirm, when the Court took the father to a number of those grounds in order to try to demonstrate to him the difficulty which confronted him by virtue of not having the transcript, the theme which permeated those discussions, and would permeate any judgment of this Court, referring seriatim to the father’s grounds of appeal, is the absence of transcript.
In reality, as the Court suggested to the father, in the absence of the transcript, successfully prosecuting the complaints raised by him was analogous to the position of a bricklayer on a site bereft of bricks. The position is really that simple.
To illustrate, reference to some of the challenges is perhaps appropriate. Ground 1 referred to the absence of evidence “in certain parts of the hearing”, and to “personal decisions” or assumptions by the learned Federal Magistrate. It is palpably obvious from the terms of that complaint that to have any chance of establishing it, the Court would need to be taken, extensively one would think, to the transcript in relation to what was and, in the light of what was traversed, to what, if it be the fact, was not. A complaint of that kind does not, as a matter of law, impose any burden on a respondent to procure a copy of the transcript and, by reference to it, demonstrate that there was evidence, albeit in relation to unspecified matters when one has regard to Ground 1, upon which the learned Federal Magistrate could rely.
A second illustration is readily found at Ground 2. Ground 2 caused the Court to suggest to the father that the absence of the transcript precluded this Court from accepting his complaint. The Court suggested to the father that if the learned Federal Magistrate had found, for example, that the mother lived in Canberra and the father lived in Cairns, and could drive between the two cities in two hours, that would be a material error of fact which was demonstrated without the necessity to have recourse to the transcript.
The issue which the learned Federal Magistrate decided, and gave adequate and cogent reasons for deciding, did not fall into that category. How long it takes to drive between Wollongong and Canberra, Sydney and Wollongong, Sydney and Canberra, were all matters which clearly were the subject of evidence before the learned Federal Magistrate. None of her Honour’s findings was obviously erroneous. It may be that her Honour could have come to other conclusions, but in the absence of the ability to demonstrate by reference to the transcript of the evidence that was given that the findings made by the learned Federal Magistrate were not reasonably open to her Honour, the challenge cannot succeed.
Similar observations apply to where the father was living. It may be that the father was, in fact, not living where her Honour appears to have found that he was, but as her Honour’s reasons for judgment made clear, the finding was, at least in part, referable to statements which the father was asserted to have made. Whether he did or not, whether they were taken out of context or not, whether they were misinterpreted or not, are all matters which, if her Honour erred in some material respect, would and could only be demonstrated by reference to the transcript of the proceedings. Without it, complaints of that kind could not succeed.
A number of the father’s grounds relate to the learned Federal Magistrate’s acceptance on the one hand, and rejection on the other of expert opinion evidence. As the submissions of Counsel for the ICL explain, it was open to the learned Federal Magistrate to accept or not accept that expert opinion evidence, and/or to accord that evidence or such evidence as was accepted such weight as her Honour considered appropriate in all the circumstances.
The learned Federal Magistrate’s reasons for judgment set out in considerable and cogent detail why she concluded as her Honour did, with respect to the evidence of Dr P and Mr G. In the absence of the transcript, particularly in relation to such cross-examination as there may have been of each of these expert witnesses, the complaints agitated by the father simply cannot be upheld. The transcript, were it available, may for all the Court knows establish the complaints. They may, on the other hand, completely destroy the arguments which the father mounts. The father bears the onus of demonstrating appealable error. In the absence of the transcript, he cannot do so with respect to each of these expert witnesses.
Similar complaints were made by the father with respect to adverse or, he submits, unduly favourable findings with respect to lay witnesses, notably the parties and the mother’s present partner. As the Court endeavoured to explain to the father during the course of his submissions, albeit not using the term which will shortly be used, those sorts of complaints, perhaps more than any others, in the absence of clear documentary evidence of a material error of fact, and the Court has not been referred to any such evidence, are matters which fall peculiarly and almost uniquely within what the law knows as the trial judge’s advantage.
The learned Federal Magistrate saw and heard the parties and relevant lay witnesses give evidence and be cross-examined during the course of a trial which proceeded for three days. No doubt a lot of questions were asked and answered. Her Honour had the benefit not only of hearing that evidence, which this Court lacks, but as the authorities make clear, of seeing the witnesses give evidence and be cross-examined. It is traditional in appellate proceedings, as the High Court has reiterated on numerous occasions within the last decade, or so, for Courts entertaining appeals against discretionary judgments to exercise restraint in relation to matters with respect to which the trial judge had the advantage of seeing and hearing the witnesses give evidence (see Hontestroom v SS Sagaporack [1927] AC 37, Abalos v Australian Postal Commission (1990) 171 CLR 167, and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588).
The trial judge’s advantage over this Court in this appeal is even greater. Not only did this Court not see or hear the witnesses give their evidence, it has no idea what was said because it does not have the transcript which records what was said. As such, and as the helpful submissions of Counsel for the ICL record in rather more detail and more eloquently than these reasons do, those complaints cannot succeed. Whilst the Court has some sympathy for the father in terms of the period of time which has elapsed since he last had any face-to-face contact with his daughter, and the reality that he may not have any face-to-face contact with his daughter for quite some years to come, as recorded earlier, that cannot override the obligation of the Court to apply the law.
The father suggested in the course of an oral submission earlier this morning that the important matters was the child’s right to see her father. As the provisions of Part VII of the Act makes clear, one of the primary considerations relevant to a determination of best interests of a child, which is the paramount consideration in parenting proceedings, is the right of the child to have a meaningful relationship with both parents. With respect to the father, the child’s right to see the father does not override all else. The numerous and detailed provisions of Part VII of the Act, in particular, s 60CC, both, by reference to primary, and other considerations, make that clear.
Equally clear is the law in relation to the submissions at trial of the ICL. The father referred the Court to paragraph 8 of Counsel for the ICL’s written submissions which recorded:
8.The father is correct to say that he has not seen his daughter for a number of years. This is a relevant factor which was taken into account by Her Honour: Judgment par [39]. It was submitted by the Independent Children’s Lawyer that the child could benefit from seeing her father in a safe environment and this is consistent with the evidence of the consultant. Her Honour had regard to this factor but ultimately did not accept the evidence of the consultant or the submission of the Independent Children’s Lawyer: Judgment par [86]. This is an exercise which was within Her Honour’s exercise of discretion. The father’s attitude and stated intent to refuse to travel to Canberra is a more relevant matter. This factor is referred to later in these submissions.
Whilst one can, with respect, understand that the father would read paragraph 8 in the way he clearly did, as Counsel for the ICL’s submissions make clear, the learned Federal Magistrate did consider the position advanced at trial by the ICL. Her Honour dealt with it, and gave reasons which are clearly adequate for the conclusion she reached. That challenge really cannot assist the father in this appeal.
The father referred in his grounds of appeal, and with some passion at times in his oral submissions to the “unfair advantage” he was under at trial and before this Court. The Court suggested to the father, and does not resile from the suggestion, that the learned Federal Magistrate and this Court both, to use the colloquial, were just stating the obvious in suggesting to the father that at trial, and perhaps even more so before this Court, he was at a disadvantage. It does not follow that he was, or will be, unfairly disadvantaged in the determination of the proceedings.
Nothing to which this Court has been referred in relation to the trial before the learned Federal Magistrate demonstrates that the father was unfairly disadvantaged at any time in the proceedings before the learned Federal Magistrate, either by virtue of his being unrepresented, or otherwise. In reality, as the Court sought to explain to the father during the course of his oral submissions, the real disadvantage under which the father has laboured in this Court is that he does not have the transcript. With respect to the senior members of the junior bar opposing the father, in the absence of the transcript it would not matter who, whether represented or otherwise, resisted the appeal.
The father bears the onus of demonstrating appealable error, and without the transcript there is simply no way in which he can do so. Out of concern that, notwithstanding the grounds articulated by him in his Notice of Appeal, the father might have had a possible basis for appellate intervention, the Court has closely scrutinised the reasons for judgment of the learned Federal Magistrate. As noted at the outset of the appeal, the appeal book was missing approximately one-third of the learned Federal Magistrate’s reasons for judgment. A full copy of the judgment was secured and read and re-read prior to the appeal being heard.

Whilst, of necessity, given the absence of any transcript or anything more than the father’s grounds of appeal, the Court’s perusal of the learned Federal Magistrate’s reasons for judgment was, essentially, in the nature of reading to see whether anything emerged which was inconsistent with, or appeared to be other than consistent with other findings in the judgment, or conclusions reached in reliance upon them. The Court did not, and was not obliged, to peruse her Honour’s reasons with a view to finding a ground for the father. It can however be recorded that having read the learned Federal Magistrate’s comprehensive and closely reasoned judgment, nothing has emerged which suggests that with or without the transcript, appellate intervention might be enlivened.
To summarise the principles which are more fully and eloquently referred to in Counsel for the ICL’s submissions, there is a presumption that the decision of the learned Federal Magistrate was correct. The father bears the onus of demonstrating appealable error. Where, as in this case, the asserted appealable errors are not demonstrable or manifest on the face of the reasons for judgment, that, of necessity, must be there by way of reference to exhibits, which is not suggested to be the case here, or the transcript of what was said or not said.
The difficulties which confront the father in this appeal, arising from the absence of the transcript, are even greater when one has regard to the terms of the complaints which the father makes, particularly in the areas to which the Court referred briefly earlier in these Reasons. Perhaps no more is that so than in relation to matters falling within the ambit of the trial judge’s advantage. The principles governing the appeal, as Counsel for the ICL has again, admirably summarised, are not in doubt. The High Court recorded in House v The King (1936) 55 CLR 499, 76 years ago, what the tests are, and the High Court has consistently, every decade or so, reiterated the test in substantially the same or identical terms.
It has not been demonstrated, with respect to the father, nor could it be in the absence of the transcript, that the learned Federal Magistrate’s discretion miscarried by virtue of any material error of fact. Nor has it been demonstrated, or could it have been in the absence of the transcript, that such material error of fact arose by virtue of acceptance of evidence which ought not to have been accepted, or rejection of evidence which should have been accepted. There is no suggestion that her Honour applied erroneous legal principles.
Although the father would not accept it and, with respect, could not be expected to accept it, none of the inferences drawn by the learned Federal Magistrate in reliance upon the facts as found by her has or, in the absence of the transcript, probably could have been demonstrated to have been unreasonable. The result has not been shown unsurprisingly, given that particular challenges to the exercise of discretion which led to it, have failed to demonstrate that the learned Federal Magistrate’s decision was plainly wrong (see Gronow v Gronow (1979) 144 CLR 513). That is not to say that other conclusions might not have been open to the learned Federal Magistrate. They may have been, but that is not the test for present purposes.
No ground of appeal having been made out, the Court’s duty is clear. It must, and does dismiss the Notice of the Appeal.

costs

Consequent upon the appeal being dismissed, Counsel for the mother, and Counsel for the ICL each sought orders for costs. The basis upon which costs orders have been sought is that the father has been wholly unsuccessful which is a relevant factor within s 117(2A) of the Act.
With the greatest of respect to the father, and accepting, as suggested in the reasons for judgment in the appeal, that the father has at all times acted out of a genuine belief that his appeal had merit, the reality is that without the transcript, having regard to the complaints raised by the father, not only was his appeal wholly unsuccessful, but it was always going to be wholly unsuccessful. Without the transcript, he simply could not succeed with any of the challenges which the Notice of Appeal articulated.
Counsel for the mother has indicated that her earnings are in the range of $50,000 ─ $80,000 per annum. The father has indicated that he is on unemployment benefits in the form of New Start Allowance. He has no assets of substance. He lives rent-free with his father, the inference he asks the Court to draw being that he is, to some extent, subsidised by his father. The Court does not have evidence as such other than of the briefest kind in relation to these matters, but to have evidence, and have evidence tested would be disproportionate to the issue involved, and the cost of so doing. The Court takes into account, as is relevant under s 117(2A), that the mother is in a superior position to the father.
The position of those funding the ICL is perhaps a little less straightforward except that in the circumstances of this appeal it was entirely proper that the ICL appear at the appeal, particularly as the ICL appears at trial to have taken a somewhat different stance to that taken on appeal.
Had the transcript been available, it may be that in some measure the submissions of the ICL would or could have been, to some extent, supportive of the father. Without, having now seen them for the first time, in any way criticising or demeaning the submissions on behalf of the mother, the submissions of Counsel for the ICL were particularly helpful in the absence of the transcript, or any outline of argument by the father, and it was by reference to those submissions that the Court, in effect, conducted its own independent scrutiny of the trial judge’s reasons.
There are many cases where, to use the colloquial, the ICL is “along for the ride”, and the Court does not award costs in the ICL’s favour. This is not such a case. The ICL’s contribution to the appeal has been significant and helpful. The authorities the Court recollects in relation to the financial position are not particularly consistent or, perhaps not surprisingly, clear in the approach taken. The Court’s approach, however, is that the public purse has been drawn into this appeal. It has opposed the appeal. It has been wholly unsuccessful.
Balancing the financial detriment of the father on the one hand with the clear financial superiority of the mother, and possible financial superiority of the Legal Aid funder of the ICL on the other, the matter which simply cannot be ignored is that this whole exercise arose because, as was his right, the father filed and prosecuted his Notice of Appeal. He did that diligently, and that would go to the quantum of costs assessed as payable by him, but the unavoidable reality is that without the transcript, the prospect of success was at all times minimal or, as transpired, there was no prospect of success.
To allow a situation where parties drawn into an appeal who have been wholly successful are left without any reimbursement, particularly where with respect to the father, although he has been the appellant, it has been the respondent mother, and to a significantly greater extent the ICL who has, to put it crudely, done most of the work, would be even more difficult to reconcile with the interests of justice.
There are two issues. The first is, should an order for costs be made? The second is, if so, given the father’s asserted position, how is he to satisfy that order? It is, it can safely be said, common ground that any costs which the father is assessed to be required to pay could potentially only be satisfied by an instalment order. This Court is in no position to determine that. It would be unjust to both parties to do so, given the absence of evidence, or the opportunity to test evidence in relation to that issue.

On the basis that, if it were established, or accepted that the father’s financial position is substantially limited as he has indicated to the Court today, an instalment order potentially of quite lengthy duration with respect to costs would be appropriate.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 13 August 2012.

Associate:

Date: 23.08.2012