Kettle and Baker

[2011] FamCAFC 171

FAMILY COURT OF AUSTRALIA

KETTLE & BAKER [2011] FamCAFC 171

FAMILY LAW – APPEAL – Application for adjournment – Adjournment granted.

Family Law Act 1975 (Cth)

APPELLANT: Mr Kettle

RESPONDENT: Ms Baker

INDEPENDENT CHILDREN’S LAWYER: Berck & Associates

FILE NUMBER: BRC 6532 of 2009

APPEAL NUMBER: NA 3 of 2011

DATE DELIVERED: 10 August 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Coleman, May & Strickland JJ

HEARING DATE: 10 August 2011

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 8 December 2010

LOWER COURT MNC: [2010] FamCA 1164

REPRESENTATION

REPRESENTATION FOR THE APPELLANT: In person

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: Burchill & Horsey

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Berck & Associates

Orders

1. That the Notice of Appeal filed 18 January 2011 be adjourned to a date to be fixed.

2. Note the undertaking given to the Court by [Mr B] that:

   “I will not, by any means communicate, publish or disseminate to, or discuss with or otherwise reveal to any person or entity the content of audio recordings of proceedings in the Family Court of Australia before Murphy J on 2 November 2010, 8 December 2010 and 9 May 2011 or anything said therein other than to [Mr Kettle].”

3. That to the extent necessary, the appellant and [Mr B] have leave to listen to audio recordings of the proceedings before Murphy J on 2 November 2010, 8 December 2010 and 9 May 2011.

4. That within 42 days of this date the appellant file and serve a document identifying the portions of the transcript of proceedings before Murphy J on 2 November 2010, 8 December 2010 and 9 May 2011 upon which the appellant relies by reference to the date and times of the proceedings on those dates.

IT IS NOTED that publication of this judgment under the pseudonym Kettle & Baker 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 BRISBANE

Appeal Number: NA 3 of 2011
File Number: BRC 6532 of 2009

MR KETTLE

Appellant

And

MS BAKER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE

REASONS FOR JUDGMENT

Coleman J

1. For my part, my reasons for adopting the course the Court has indicated are essentially that the other parties to the proceedings which give rise to the appeal have, as is their right, elected not to participate in the appeal, and that as such the application of Mr Kettle (“the appellant”) for an adjournment can be seen as largely unopposed.

2. Further, given that although the appellant appears to be arguing the matter somewhat differently before this Court than he did before Murphy J, which within limits he is entitled to, it would be potentially relevant to the appeal, as the appellant has earlier this morning indicated, to know what was said on each of the three occasions identified in paragraph 2 of the appellant’s application which are asserted to impact upon the appeal. Given that there is a way of facilitating that which clearly is within what the appellant says are his means, to not do so may be to deny him natural justice, which I would be anxious to avoid doing.

3. As indicated earlier, it is not the policy of the Court to provide copy of transcript in circumstances such as the material before this Court reveals to be this case. It is not the policy of the Court, whatever might have been the case in 2007, to provide or facilitate the provision of CDs of audio transcripts. In certain circumstances, and I would think this is a case in point, the Court will adopt the course, and has adopted the course, of allowing a litigant in person to listen to the audio recordings, identify by reference to date and the time the passages relied upon, and then at the hearing of the appeal, either in open court or, if invited to listen to the audios in chambers, the members of the bench who hear the appeal listen to the passages specifically relied upon by the appellant. I should make it clear, though, that listening to passages to which the Court is specifically referred does not preclude the Court from listening to the whole of the audio. It simply is a way of facilitating an appellant identifying the parts upon which he or she relies, in the way in which that would be done if there was a copy of the transcript. 

4. For the foregoing reasons, I would adjourn the appeal on the basis that was suggested before giving these brief reasons. 

May J

1. I agree with the presiding Judge that the matter must be adjourned. It is, indeed, most unfortunate that this matter cannot be heard today and will have to be heard on another occasion.

2. I would emphasise that my own view is that paragraph 9 of the order made by O'Reilly J on 7 September 2007 in no way would support an argument that Mr Kettle is entitled to, for the purpose of this appeal, some audio transcription of what occurred before Murphy J. However, as the presiding Judge has correctly observed, a principal argument in this appeal is that Murphy J should have excused himself from hearing the matter. It would be difficult for us to determine that without the transcript or without the audio tape of that occasion.

3. So to that extent, I would agree that the matter should be adjourned, and I would agree that the orders as described by the presiding Judge should be made on this occasion.

Strickland J

1. I agree with the orders proposed by the presiding Judge and also agree with the reasons for those orders. I also agree with the reasons provided by May J.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, May and Strickland JJ) delivered on 10 August 2011.

Associate: 

Date:  18.08.11