JEBBETT & COREY
[2020] FamCAFC 104
•1 May 2020
FAMILY COURT OF AUSTRALIA
| JEBBETT & COREY | [2020] FamCAFC 104 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Provision of transcript – Where the mother seeks that relevant parts of the audio recording be made available instead of the transcript – Where substituting the audio recording for the transcript would not be efficient – Application dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – Provision of transcript – Where the mother seeks that her Summary of Argument be allowed to exceed 15 pages – Where permitting the mother to rely on more extensive written submissions would allow her to present her case more efficiently – Order allowing the mother to rely on a Summary of Argument not exceeding 30 pages – Application otherwise dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – Adduce further evidence – Where it is likely that both appeals will be heard simultaneously – Order allowing the parties to refer to the appeal book in Appeal NOA 54 of 2019 at the hearing of Appeal NOA 102 of 2019 – Question of adducing further evidence reserved to the Full Court – Application otherwise dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – Adduce further evidence – Where there is no real prejudice to the father or the Independent Children’s Lawyer if the mother is allowed to rely on her Amended Notice of Appeal – Order allowing the mother to rely on her Amended Notice of Appeal – Application otherwise dismissed. |
| APPLICANT: | Ms Jebbett |
| RESPONDENT: | Mr Corey |
| INDEPENDENT CHILDREN’S LAWYER: | Norman & Kingston |
| FILE NUMBER: | BRC | 9223 | of | 2017 |
| APPEAL NUMBERS: | NOA NOA | 54 102 | of of | 2019 2019 |
| DATE DELIVERED: | 1 May 2020 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 26 March 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 May 2019; 22 October 2019 |
| LOWER COURT MNC: | [2019] FamCA 358; [2019] FamCA 774 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Jones |
| SOLICITOR FOR THE RESPONDENT: | MLDG Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Kingston |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Norman & Kingston |
Orders
The Application in an Appeal filed 4 December 2019 is dismissed.
Save that in Appeal NOA 54 of 2019 the applicant may rely upon a Summary of Argument not exceeding 30 pages in length, the Application in an Appeal filed 7 February 2020 is dismissed.
Save that:
(a) The parties be at liberty to refer to the appeal book in Appeal NOA 54 of 2019 at the hearing of Appeal NOA 102 of 2019; and
(b) The question of the admission of further evidence in Appeal NOA 102 of 2019 be reserved to the court hearing that appeal;
the Application in Appeal filed 2 March 2020 is dismissed.
Save that:
(a) The question of the admission of further evidence in Appeal NOA 54 of 2019 be reserved to the court hearing that appeal; and
(b) In Appeal NOA 54 of 2019, the applicant have leave to rely upon an Amended Notice of Appeal dated 8 March 2020;
the Application in an Appeal filed 10 March 2020 is dismissed.
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 Jebbett & Corey 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 CAIRNS |
Appeal Numbers: NOA 54 of 2019; NOA 102 of 2019
File Number: BRC 9223 of 2017
| Ms Jebbett |
Applicant
And
| Mr Corey |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
On 29 May 2019, the primary judge made final parenting orders in relation to Child D, the presently seven-year-old only child born to the parties’ relationship (“the child”). Pursuant to those orders, Ms Jebbett (“the mother”) would have sole parental responsibility for the child, who would live with the mother and spend no time with Mr Corey (“the father”). The extent to which the father was able to maintain any form of relationship with the child was only by sending letters, emails, cards and presents to the child on one occasion each month, and at Christmas, Easter and for the child’s birthday. That said, the mother was at liberty to monitor the father’s communication with the child, and withhold anything which she deemed inappropriate.
The father has not brought any appeal from those orders. Unsurprisingly, neither has the mother. However there were a suite of additional specific orders made in relation to the child, including orders mandating the child’s ongoing attendance upon a particular therapy practice, and a prohibition on the mother home schooling the child. A further order directed the parties to provide specified reports, and the primary judge’s orders and reasons for judgment, to various persons treating the child. From those orders the mother appealed on 18 June 2019 (“Appeal NOA 54 of 2019”).
On 30 August 2019, the mother filed an application to stay the 29 May 2019 orders. On 22 October 2019, the primary judge delivered ex tempore reasons dismissing that application. Subsequently the mother appealed that decision, with the present Amended Notice of Appeal having been filed on 14 February 2020 (“Appeal NOA 102 of 2019”).
Both appeals are in the process of being readied for hearing. In the course of that, the mother has filed four Applications in an Appeal. On 26 March 2020 I heard all four Applications in an Appeal, and reserved my decisions. What follows is my judgment and reasons for decision in relation to all four applications.
BACKGROUND
The mother was born in Country F in 1972, and hence is presently 47 years of age. The father was born in Australia in November 1974, and hence is presently 45 years of age. The parties’ commenced cohabitation in Australia in November 2010, relocated to Brisbane from Melbourne in August 2015, and whilst living there, separated on a final basis in August 2016. The child was then a little over four years of age.
At the time of the hearing before the primary judge, the father was employed as a driver, whereas the mother had university qualifications, but did not work.
The father has a number of mental health issues. The child has been diagnosed with autism, and may also have attention deficit hyperactivity disorder.
The trial of the parenting proceedings were conducted over nine days in 2018 and 2019. At the trial the father was represented, whereas the mother self-represented. There was also an Independent Children's Lawyer (“ICL”).
THE FIRST APPLICATION
By her Application in an Appeal, filed in appeal NOA 54 of 2019 on 4 December 2019, the mother seeks orders that, instead of a transcript of the trial before the primary judge, audio recordings be made available to the court hearing the appeal, and “[t]hat [a]udio recording be only in parts relevant to grounds of [the mother’s] appeal.” In support of that application, she filed an affidavit which deposed to her straitened financial circumstances, in that she only receives a carer payment of $933.40 from Centrelink every two weeks, together with $200 in child support. She has obtained an estimate of the cost of obtaining the transcript in the sum of $19,709, however has been advised that an audio recording would only cost $4,359.
In addition, in a document filed 21 February 2020, the mother details the particular parts of the recording which she would seek to rely upon. According to written submissions filed by counsel for the ICL, nonetheless the total duration of those recordings would be in the order of 19 hours (ICL submissions filed 16 March 2020, paragraph 5). Further, the mother relied upon emails which she had received from Auscript which, at least according to the mother, indicated that some degree of searching could be undertaken by the Auscript operators in relation to those parts of audio which were produced. It might be that this would result in a lesser cost to the mother.
However, whilst the mother claimed that this would be a more convenient course to adopt, rather than to require her to provide a transcript, as counsel for the ICL correctly pointed out, it would require each of the members of the Court to individually listen to some 19 hours of recording. It would also require the practitioners for the other parties to listen to that recording as well. Further, as the ICL argued, there is likely an obligation upon the ICL to confirm that the extracts that the mother relies upon are only those which are relevant to the appeal. Therefore, considerably more than the mere 19 hours of recordings would need to be listened to by him.
Whilst the mother contended that an audio recording was more convenient, of course there are many difficulties associated with recordings, rather than transcript, including searching it for particular words, being able to accurately repeat what one hears in the recording in the course of the reasons for judgment, and the inability to move quickly between various parts of a recording, to flag it, or to otherwise highlight it.
I am far from persuaded that an audio recording, rather than a transcript, is an appropriate way forward in this appeal.
Finally, I should note that the mother’s application did not seek to wholly dispense with transcript, but rather only for it to be substituted with an audio recording. These reasons should not be read as pre-determining any such application that the mother may subsequently bring.
The mother’s Application in an Appeal filed 4 December 2019 will be dismissed.
THE SECOND APPLICATION
By Application in an Appeal filed 7 February 2020, in both Appeal NOA 54 of 2019 and Appeal NOA 102 of 2019, the mother sought a variety of orders, including orders in materially identical terms to those in her Application in an Appeal filed 4 December 2019 (albeit relating to both appeals), that her Summary of Argument be permitted to exceed 15 pages, and that she be permitted to refer to more than five cases in support of her argument.
Insofar as the Application in an Appeal filed 7 February 2020 in Appeal NOA 54 of 2019 seeks orders identical to those sought by the Application in an Appeal filed 4 December 2019, I dismiss this application for the reasons I have already given. Insofar as it also seeks that the provision of transcript in Appeal NOA 102 of 2019 be substituted with audio recordings of the hearing of the stay, the cost involved in the provision of the transcript, of what presumably was a relatively short hearing of the stay application, is unlikely to be prohibitive for the mother. Again, it will be far more efficient from the point of view of the disposition of the appeal, if there is a transcript, rather than an obligation on all three judges to listen to an audio recording. Indeed, in any event, it is quite unclear to me at present how either a transcript of the stay hearing, or an audio recording of it, would be of any real benefit in relation to the determination of Appeal NOA 102 of 2019. I therefore dismiss that aspect of the Application in an Appeal filed 7 February 2020.
As to the orders sought that the mother be permitted to rely upon a Summary of Argument exceeding 15 pages in length, the mother has since sought to file in Appeal NOA 54 of 2019, a Summary of Argument which extends to some 30 pages.
Given the fact that the mother’s first language is not English, and that therefore permitting her to rely upon more extensive written submissions is likely to enable her to more efficiently present her case, I am well satisfied that in Appeal NOA 54 of 2019, the mother should be permitted to rely upon written submissions not exceeding 30 pages in length.
In relation to Appeal NOA 102 of 2019, no such dispensation is required, as the mother has managed to condense her arguments to 15 pages, and has now filed that Summary of Argument on 27 February 2020.
Insofar as the Application in an Appeal seeks permission to refer to more than five cases, there is no limit on the number of cases which an appellant, or indeed a respondent, may refer to. This aspect of the mother’s Application in an Appeal should be dismissed.
Therefore, save that in Appeal NOA 54 of 2019, the mother may rely upon a Summary of Argument not exceeding 30 pages in length, the mother’s Application in an Appeal filed 7 February 2020 will be dismissed.
THE THIRD APPLICATION
By her Application in an Appeal filed 2 March 2020, the mother seeks orders as follows:
1.That leave be granted to adduce further evidence.
2.That book of appeal NOA54/2019 be used together with supplementary Appeal Book NOA102/2019.
3.That in the absence of order two above at least order and reasons for judgment of [the primary judge] (05/04/2019) are included.
4.That Auscript audio of appeal NOA54/2019 can be used for this appeal.
5.Registration of home schooling be included.
6.Child Safety letter be included.
(As per the original)
This Application in an Appeal was only filed in Appeal NOA 102 of 2019.
Given that the primary judge heard both hearings the subject of the appeals, the trial materials were necessarily relevant in dealing with the stay. In any event, it is likely that both the stay appeal and the substantive appeal will be heard simultaneously. It therefore seems sensible that the mother be at liberty to refer to the appeal book in Appeal NOA 54 of 2019 in Appeal NOA 102 of 2019. No party before me seriously contended to the contrary.
Insofar as the application seeks orders in relation to the provision of audio recordings rather than a transcript, it is dismissed for the reasons already given in relation to the earlier applications.
Insofar as the application seeks leave to adduce unspecified further evidence, I propose to reserve this matter to the Full Court hearing Appeal NOA 102 of 2019. Likewise, insofar as the application seeks to admit into evidence materials dealing with the child’s home schooling, and subsequent correspondence between the mother and the Department of Child Safety, that is a matter which should ultimately be determined by the Full Court hearing the appeal.
Otherwise the mother’s Application in an Appeal filed 2 March 2020 will be dismissed.
THE FOURTH APPLICATION
By Application in an Appeal filed 10 March 2020 in Appeal NOA 54 of 2019, the mother sought that the appeal book in Appeal NOA 102 of 2019 be included as part of the materials in the determination of Appeal NOA 54 of 2019, together with the correspondence from the Department of Child Safety and correspondence relating to the child’s home education, discussed above. Whilst it is presently unclear to me how materials relating to Appeal NOA 102 of 2019 could inform a court in relation to Appeal NOA 54 of 2019, as I have already indicated, it is likely that the same court will deal with both appeals, and therefore, in practical terms, the court will have that material before it. However I am not persuaded that there should be a formal order in that regard.
For the same reasons that I earlier deferred the admission of proposed further evidence to the Full Court ultimately determining Appeal NOA 102 of 2019, that part of this Application in an Appeal will also be reserved.
The mother also seeks to rely upon an Amended Notice of Appeal signed 8 March 2020. As to that, a number of matters are relevant. The first is that the mother’s Summary of Argument in Appeal NOA 54 of 2019 has already been structured by reference to the proposed Amended Grounds of Appeal. The second is that because the mother’s Summary of Argument in Appeal NOA 54 of 2019 has been rejected for filing (as it exceeded 15 pages), neither the father nor the ICL has prepared material, or at least filed material, in response to that Summary of Argument, and hence has not filed any Summary of Argument framed by reference to the original Notice of Appeal. Therefore no real prejudice to the father or the ICL is demonstrated if the mother is able to rely upon the Amended Notice of Appeal.
Finally, I should say that, although the mother contended that there were no changes of any substance in the re-casting of the grounds of appeal, on the face of the proposed Amended Notice of Appeal, that is demonstrably incorrect. However the fact that she wishes to include new challenges to the primary judge’s reasons, in the circumstances, ought not be prevented.
I am therefore persuaded that the mother should be permitted to rely upon the Amended Notice of Appeal signed by her on 8 March 2020 and appended to her affidavit filed on 10 March 2020.
Otherwise the mother’s Application in an Appeal filed 10 March 2020 should be dismissed.
Costs
Counsel for the father was obliged to make an application for costs, by virtue of the fact that his client is legally aided. That said, he accepted that given the mother’s financial circumstances, it was most unlikely that any costs order would be made, as it would be a substantial impost upon her.
As for the ICL, he indicated that the primary judge had formed the view that an order for costs in the stay application would cause financial hardship to the mother, and that the Court should follow that conclusion. Whether or not that is the path by which the outcome should be reached, I am nonetheless satisfied that an order for costs against the mother would cause significant financial hardship to her. Therefore each party should bear their own costs, and hence I decline to make any order for costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 1 May 2020.
Associate:
Date: 1 May 2020
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