Harrell and Hancock Harrell
[2018] FamCAFC 261
•19 December 2018
FAMILY COURT OF AUSTRALIA
| HARRELL & HANCOCK- HARRELL | [2018] FamCAFC 261 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Where the father sought that the Court provide the transcript of trial proceedings for the hearing of his appeal or in the alternative the requirement to produce the transcript be dispensed with – Where the Court may, in its exercise of discretion, agree to provide transcript of relevant parts of evidence – Where such discretion is only exercised in exceptional cases – Where it was not readily apparent that trial transcript would assist in the determination of any of the father’s grounds of appeal – Where all parties confirmed that in advancing their respective arguments on appeal they would not seek to make reference to matters appearing in the transcript – Requirement to produce transcript dispensed with. |
| Family Law Act 1975 (Cth) s 94(2) Family Law Rules 2004 (Cth) r 22.18(1) |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Finch & Shibo (No. 2) [2016] FamCAFC 108 Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189 Fortnum & Fortnum (No. 2) [2008] FamCAFC 73 Friscioni & Friscioni (Application for transcript) [2009] FamCAFC 48 Sampson & Hartnett(Provision of [2010] FamCAFC 220 Transcript) (2013) FLC 93-542; [2010] FamCAFC 220 Trahn & Long (No. 2) [2008] FamCAFC 194 WJD & TEK (1998) 72 ALJR 1323 |
| APPLICANT: | Mr Harrell |
| RESPONDENT: | Ms Hancock-Harrell |
| INDEPENDENT CHILDREN’S LAWYER: | Judy Stewart, Stewart Family Law |
| FILE NUMBER: | BRC | 1164 | of | 2014 |
| APPEAL NUMBER: | NOA | 79 | of | 2016 |
| DATE DELIVERED: | 19 December 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 19 December 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 September 2016 |
| LOWER COURT MNC: | [2016] FamCA 831 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person by telephone |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Dodd |
| INDEPENDENT CHILDREN’S LAWYER: | Stewart Family Law |
Orders
That the requirement for the father to provide transcript for the purpose of his appeal be dispensed with.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harrell and Hancock-Harrell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 79 of 2016
File Number: BRC 1164 of 2014
| Mr Harrell |
Applicant
And
| Ms Hancock-Harrell |
Respondent
And
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
By Application in an Appeal filed on 3 October 2018 Mr Harrell (“the father”) seeks that this Court pay for and provide relevant transcript of parenting proceedings heard at a trial in August 2016. In the alternative the father seeks that the requirement for transcript for his appeal be dispensed with.
Neither Ms Hancock-Harrell (“the mother”) nor the Independent Children’s Lawyer (“ICL”) appointed to independently represent the interests of the child, Child C, the subject of these proceedings (born August 2011) oppose the father’s application in either alternative.
The trial of parenting proceedings concerning the child was heard over five days in August 2016. Tree J delivered judgment and made orders on 29 September 2016. In summary, the effect of those orders is for the child to live with the mother and for the mother to have sole parental responsibility. Orders were also made directed to the father undergoing certain specified medical treatment or assessment. The child spending time with the father was predicated upon the father’s compliance with recommended medical treatment in which event the child would spend time with the father at a contact centre over a period of 12 months, provided the father regularly attended the contact centre and satisfactory reports of the child’s time with him were forthcoming; and likewise confirmation being received from the father’s treating medical professionals as to satisfactory progress of treatment. After 12 months of the father spending time with the child in a supervised setting he was to have liberty to apply to dispense with the requirement for supervision.
The orders also provided that in the event that the father failed to take up the opportunity of spending time with the child at a contact centre, then the relevant orders were to be discharged 12 months from the date of them. As I understand it, that is in fact what has occurred.
The father’s Amended Notice of Appeal filed on 12 January 2017 sets out the following as his grounds of appeal from the orders made by Tree J:
1.Judge Tree has made errors of fact and law and not applied s60cc appropriately and has ignored the danger and risk of the Respondent’s acts and ommissions as contained in my Fporm 4 (the only relevant Form 4 submitted appropriately). He has misrepresented in his reasons my actions which he at first says were to make my little boy safe but then conveniently smacks me down about. There is no evidence that i have or will harm my little boy, there is conclusive evidence that the Respondent has and still is doing so.
2.As for the same reasons above Judge Tree has has made errors of fact and law and not applied s61DA appropriately and the presumtion of shared parental responsibility should not be rebutted against me because all i did was act to preserve my little boy’s life and protect him from the abuse in my Form 4, and the abuse that is continuing. The presumption MUST be rebutted against the Respondent. There is no evidence that i have or will harm my little boy, there is conclusive evidence that the Respondent has and still is doing so.
3.Judge Tree has made errors of fact and law and has not acknowledged that the Respondent lied to obtain her DVO and has acted in her parents best interest and not in my little boys best interest and determined that this is contrary to s60CC and confirms the rebuttal of shared parental responsibility against her. This is coercive DV and there is no evidence that i have or will harm my little boy. There is conclusive evidence that the Respondent has and still is committing co-ercive DV, and this behaviour confirms my concerns in my Form 4, on the balance of probabilities, which MUST rebutt the presumption of shared parental responsibility against the Respondent.
4.Judge Tree has made errors of law in not properly applying case authority, including not following his own judgements that would be in my and my little boy’s favour.
(As per original)
The father filed his appeal books on 29 March 2017 however those appeal books were missing a number of documents contained within the appeal book index. The Appeals Registry therefore prepared two supplementary appeal books containing the missing documents.
Shortly after filing his appeal books, the father was incarcerated for reasons not presently known to the Court and for an unknown period of time (although it would seem that this related to charges laid against the father for breaches of the mother’s Protection Order).
The father failed to file transcript or a Summary of Argument in accordance with the procedural orders made by Registrar Kane on 13 December 2016. As such, Registrar Kane sent a Notice of Non-Compliance to the father on 24 July 2018.
The father’s non-compliance was heard by the Full Court (comprising Strickland, Murphy & Kent JJ) on 12 September 2018 and the following orders were made:
(1) The time provided by Orders 7 and 8 of the Orders made 13 December 2016 for the respondent mother and the Independent Children’s Lawyer to file a Summary of Argument be extended to 31 December 2018.
(2)The appellant father is to copy and serve the appeal books upon the respondent mother and the Independent Children’s Lawyer by no later than 31 October 2018.
(3) The appellant father is to file any application in relation to dispensing with the transcript of proceedings or otherwise by no later than 31 October 2018.
On 13 December 2016 orders were made by the Appeals Registrar which were designed to ready the appeal for hearing. The father failed to comply with those orders so far as they require the filing of the trial transcript. Order 3 of the Full Court’s orders made 12 September 2018 referred to provided the father with a timeframe in which to file an Application in an Appeal seeking to dispense with the transcript. Obviously, the father filed such application within the timeframe prescribed.
Relevant principles
Rule 22.18(1) of the Family Law Rules 2004 (Cth) (“the Rules”) provides that the appellant or, if so ordered, the cross-appellant is responsible for preparing and filing the appeal books, including arranging to obtain any transcript required to be included in the appeal books.
Notably, there is no specific provision in the Family Law Act 1975 (Cth) (“the Act”) or the Rules providing for a power in the Court to meet the costs of and the provision of transcript for appeals. It is notorious that the Court does not have the financial resources to provide transcript for appeals.
In WJD & TEK (1998) 72 ALJR 1323 the High Court did not express any doubt about the view of the Full Court of this Court that it had no power to order the provision of transcript. However, Kirby J observed that there might be an occasion on which the High Court might grant special leave to consider the matter. Unless and until that occurs there must necessarily be some doubt about this Court’s capacity to order the provision of trial transcript for appeals.
In Forbes & Bream (2008) 222 FLR 96 (“Forbes”) the Full Court (Bryant CJ, Boland & Stevenson JJ) observed that the Court had “from time to time judiciously provided transcript to parties where it is demonstrably in the interests of justice to do so” (at [28]) and considered “whether this Court has a residual discretion to order provision of a transcript at the Court’s expense in such circumstances” (at [30]). Their Honours continued “[i]t has been assumed (without ever being decided) by this Court in several cases that such a discretion exists”. In Forbes the Court considered the “supervisory power of the Court” (as referred to by Finn J in Fortnum & Fortnum (No. 2) [2008] FamCAFC 73) and in addition considered that the Court may, in its exercise of discretion, agree to provide transcript of relevant parts of evidence as an exercise of its powers incidental to fulfilling the statutory function set out in s 94(2) of the Act (at [35]).
Whilst the Full Court in Forbes declined to identify the circumstances in which any such discretion was properly exercised, the Full Court there observed it was unlikely to be exercised in “anything other than exceptional cases” (at [36]).
It is thus clear from Forbes and other authorities that it will only be in exceptional cases that the Court will provide transcript or parts of transcript of proceedings for the purposes of an appeal.[1]
[1] See, Sampson & Hartnett (Provision of [2010] FamCAFC 220 Transcript) (2013) FLC 93-542 (“Sampson”); Friscioni & Friscioni (Application for transcript) [2009] FamCAFC 48; Trahn & Long (No. 2) [2008] FamCAFC 194; Finch & Shibo (No. 2) [2016] FamCAFC 108.
The Court in Sampson pointed to a number of matters that may be considered in determining an application for the provision of transcript (at [16]):
·Whether the case is a financial or parenting case;
·Whether the whole transcript or part thereof is necessary for the determination of the appeal or part of the appeal;
·The likely cost of the relevant transcript and whether the appellant can afford all or part of the cost of the transcript;
·The proportionality of the cost of the transcript to the appellant’s anticipated costs in relation to the whole appeal, including the preparation of appeal books;
·The prima facie merits of the appeal;
·Whether the question of providing a transcript can be left to the Full Court hearing the appeal;
·Any other relevant fact or circumstances.
Resolution
The father has provided no evidence as to the cost of the trial transcript or of his financial circumstances other than to state that he is “on a Pensioner Concession Card” and that due to “financial hardship” he is unable to meet the costs of the transcript.
Obviously enough, the transcript for a full five days of trial would be expensive and I proceed on the understanding that the father’s financial circumstances preclude him from obtaining and providing the transcript of the proceedings for the appeal. Neither the mother nor the ICL took issue with the father’s contention that his limited financial circumstances preclude him from affording the cost.
However, as it seems to me, having regard to the father’s grounds of appeal it is not readily apparent that trial transcript will assist in the determination of any of these grounds of appeal. That is, these grounds assert errors of law on the part of the trial judge or errors of fact seemingly by reference to the reasons for judgment given by the trial judge. It is not apparent from any of the grounds of appeal that there would be a need for reference to be had to the transcript of oral evidence in order to determine any merit in any of the grounds of appeal as advanced. On the hearing the father confirmed that is so. That is, the father confirmed that in advancing his arguments on appeal he would not need to refer to anything other than the reasons for judgment of the trial judge and in the record otherwise comprised of affidavits and documentary evidence.
As to the merits of the appeal, the reasons for judgment delivered by Tree J on 29 September 2016, now more than two years ago, record that the father then sought orders for an equal shared care arrangement “seemingly on a week about basis” and in the alternative orders for equal shared parental responsibility and, whilst living primarily with the mother, that the child “at least” spend unsupervised weekend time with him (reasons at [1]). In the result, the trial judge made the orders earlier referred to.
Obviously enough the trial judge exercised a discretionary judgment in the making of parenting orders and the nature and width of the discretion involved with such orders has often been referred to in the authorities (see, for example, CDJ v VAJ (1998) 197 CLR 172). I simply observe that in considering the prima facie merits of this appeal, there is no glaringly apparent error on the part of the trial judge as would lead to a conclusion to the effect that the appeal must necessarily succeed. It is readily apparent from the reasons for judgment of the trial judge that over a lengthy trial the trial judge formed the view that it was in the best interests of the child that any time spent with the father be supervised. This is not to express any conclusion to the effect that the appeal is doomed to fail. Simply that on the limited assessment that can be made at this stage it is not demonstrated that the appeal must necessarily succeed.
In my judgment, there are no exceptional circumstances in this case of the kind necessary as to justify the Court providing transcript for this appeal from its own resources. Moreover, there is nothing identified in the grounds of appeal or by the father in arguing the application today which demonstrates that the hearing and determination of his appeal requires the trial transcript. Each of the mother and the ICL also confirmed on the hearing of this application that neither of them would seek to make reference to matters appearing in the transcript in order to advance their arguments with respect to the grounds of appeal and in resisting the appeal.
As was pointed out to the father during the argument of this application, if the Court makes an order dispensing with the requirement for transcript, the father as appellant would not be permitted to advance any challenge or argument in his appeal where reference to transcript would be necessary to properly consider and determine such challenge or argument. The father accepted that position.
For these reasons I order that the requirement for the father to obtain and provide trial transcript for the purpose of his appeal be dispensed with.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Kent delivered on 19 December 2018, edited to correct grammatical errors and some infelicity of expression.
Associate:
Date: 20 December 2018
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