Knox and Knox
[2017] FamCAFC 93
•18 May 2017
FAMILY COURT OF AUSTRALIA
| KNOX & KNOX | [2017] FamCAFC 93 |
| FAMILY LAW – APPEAL – JURISDICTION – where the father applied to the Federal Circuit Court for a copy of the transcript of completed parenting proceedings – where the application was refused – where the father appeals that determination – where the Full Court does not have jurisdiction to determine the appeal – where the orders the subject of appeal were not made in the “exercise of original jurisdiction” under the Family Law Act 1975 (Cth) – where appeal dismissed. |
Family Law Rules 2004 (Cth) |
| APPELLANT: | Mr Knox |
| RESPONDENT: | Ms Knox |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 2336 | of | 2013 |
| APPEAL NUMBER: | SOA | 19 | of | 2017 |
| DATE DELIVERED: | 18 May 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thackray, Strickland and Kent JJ |
| HEARING DATE: | 18 May 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 February 2017 |
| LOWER COURT MNC: | [2017] FCCA 291 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person (with the assistance of an interpreter) |
| INDEPENDENT CHILDREN’S LAWYER: | No appearance |
Orders
The appeal be dismissed.
In the parenting appeal, the Appeals Registrar be directed to seek, pursuant to r 2.08 of the Federal Circuit Court Rules, permission to obtain a copy of the trial transcript the subject of the substantive appeal from the parenting orders made on 6 April 2016 and to publish these reasons for judgment to the Federal Circuit Court in support.
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 Knox & Knox 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 19 of 2017
File Number: MLC 2336 of 2013
| Mr Knox |
Appellant
And
| Ms Knox |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
EX TEMPORE
Kent J
The appellate jurisdiction of this Court relevant to this appeal is expressed in the following terms of s 94AAA(1)(a) of the Family Law Act 1975 (Cth)(“the Act”):
94AAA(1) An appeal lies to the Family Court from:
(a)A decree of the Federal Circuit Court of Australia exercising original jurisdiction under this Act;
…
Self-evidently, an appeal lies to this Court from a decree of the Federal Circuit Court of Australia made in the exercise of the original jurisdiction under the Act. Conversely, the jurisdiction of this Court to entertain an appeal does not extend to a decree or decision made otherwise than in the exercise of original jurisdiction under the Act.
For the reasons which follow, in my judgment the orders made in the Federal Circuit Court on 20 February 2017, the subject of this appeal, cannot be characterised as orders made in the exercise of original jurisdiction under the Act. It follows that this Court does not have jurisdiction to entertain an appeal from those orders and the appeal must therefore be dismissed.
The context in which this appeal arises is that following a trial in the Federal Circuit Court which took place over six days on 28 to 30 September 2015, 1 October and 17 and 18 December 2015, on 6 April 2016 Judge Jones made final parenting orders in respect of the three children of Mr Knox (“the father”) and Ms Knox (“the mother”). Those orders provide for the children to live with their mother and spend time with their father.
The father exercised his right to appeal those orders by filing a Notice of Appeal on 3 May 2016 and an Amended Notice of Appeal filed on 6 July 2016 (“the parenting appeal”). The parenting appeal to this Court is pending. Undoubtedly in making the parenting orders the trial judge was exercising the jurisdiction conferred by s 69H(4) of the Act and there is no question that this Court has jurisdiction in the parenting appeal.
However, final orders having been made under the Act with respect to parenting orders, the jurisdiction exercised under the Act by the Federal Circuit Court was spent, unless and until that jurisdiction was re-enlivened by a further application made under the Act.
Consequent upon the father instigating the parenting appeal, on 7 July 2016, the Regional Appeals Registrar made orders including orders consistent with rr 22.23 and 22.24 of the Family Law Rules 2004, for the father to file appeal books including the transcript of the trial, by 25 August 2016.
Given the finite resources of the Federal Circuit Court, and the Family Court, a transcript is not obtained in most, or even many, trials of parenting proceedings heard in the Federal Circuit Court or in the trial division of this Court. However, in this particular case Judge Jones ordered from the relevant service provider Auscript, funded at public expense, a transcript of the trial. Her Honour’s reasons for judgment delivered with respect to the parenting orders are replete with numerous quotations from, and references to, the trial transcript. Whilst her Honour obtained that transcript, no order or direction was made to release it to the parties to the proceedings.
Thus the (self-represented) father, having been ordered by the Appeals Registrar to file appeal books for the parenting appeal, including the trial transcript, made various attempts to obtain from the Federal Circuit Court administratively that transcript, knowing as he did that it was held by that Court as part of the court record. Those attempts culminated in an Application in a Case the father filed in the Federal Circuit Court on 7 November 2016 seeking that the Federal Circuit Court provide him with the transcript. Whilst the orders made by Judge Jones on 20 February 2017 dealing with that application permitted the father to read and take notes of the trial transcript available in that Court’s file, his application was otherwise dismissed. It is those orders which are the subject of this appeal and the father seeks that this Court order, on appeal, that the orders made in the Federal Circuit Court on 20 February 2017 “be discharged”.
The reasons for judgment for the 20 February 2017 orders record the father’s evidence before the primary judge that the cost to the father of obtaining the transcript (via Auscript) would be $12,000 (at [7]). Those reasons also record the father’s sworn evidence that he cannot afford that expense. However, the primary judge was apparently not satisfied that the father “is impecunious and cannot afford to obtain the transcript through Auscript” relying, in part, on what her Honour described as her own “hazy” recollection of the father’s employment at trial “that he worked in some professional capacity”. Whilst the reasons for judgment for the parenting orders reflect that the father’s employment and financial circumstances at the time of the parenting trial were not a central focus of those proceedings, those reasons do record that the father was then employed as a finance broker but as some guide to the father’s level of income the reasons also record that the father had been administratively assessed to pay child support (for three children) of just $46.92 each fortnight (at [138]). It is not readily apparent how the financial circumstances of the father at the time of the trial concluding in December 2015, whatever they actually then were, would displace the father’s sworn evidence before the trial judge of his financial inability to pay $12,000 for a transcript as at February 2017. Before us, the father submitted that his taxation returns for each of the past four completed financial years reflected taxable income of $20,141; $9,380; $16,144 and $3,019 respectively for those years. The father submitted that what limited capital he had retained following an earlier property settlement between the parents was exhausted by the legal representation he had in the parenting proceedings. The fact that the father had legal representation historically was also a matter the trial judge relied upon for rejecting the father’s evidence that he could not afford to pay $12,000 for the relevant transcript.
The reasons for judgment of 20 February 2017 reflect that her Honour primarily relied upon what her Honour described as a “policy” of the Federal Circuit Court emanating from that Court’s “Legal Committee”. The primary judge recorded at [6]
6. The court’s policy which has been considered by the Legal Committee of the Federal Circuit Court of Australia only recently last year provides that where a transcript of Court proceedings has been obtained, which is not a common occurrence, it may be made available to a party who seeks to appeal the decision or for whatever other reason for the purpose of reading and inspecting the transcript. Copies of the transcript are not to be provided.
Thus the primary judge made orders in conformity with the stated “policy”.
Section 89 of the Federal Circuit Court of Australia Act 1999 (Cth)(“the FCC Act”) provides that the Chief Judge is responsible for managing the administrative affairs of the Federal Circuit Court of Australia and s 93 of the FCC Act provides that the Chief Judge may appoint committees for the purpose of advising the Chief Judge in relation to the management of the administrative affairs of the Federal Circuit Court.
It may fairly be assumed that the “legal committee” of the Federal Circuit Court referred to by the primary judge is a committee appointed pursuant to s 93 of the FCC Act and it also may be reasonably assumed that the primary judge accurately stated the “policy” referred to in the reasons delivered on 20 February 2017.
However, s 43 of the FCC Act provides that the practice and procedure of the Federal Circuit Court of Australia is to be in accordance with Rules of Court made under the FCC Act. Section 81 of the FCC Act contains the rule making power for the rules of court of the Federal Circuit Court. Notably, subsection (2) of s 81 provides that “Rules of Court have effect subject to any provision made by another Act, or by rules or regulations made under another Act, with respect to the practice and procedure in particular matters”. There is no reference in s 81(2) to any “policy” determinations.
Rule 2.08 of the Federal Circuit Court Rules 2001 provides for search, inspection and copying of documents forming part of that Court’s record. The relevant terms of r 2.08 are as follows:
2.08 Searching records
(1) The following persons may search the court record relating to a family law or child support case, and inspect and copy a document forming part of the court record:
(a) the Attorney-General;
(b) a party, a lawyer for a party, or an independent children’s lawyer, in the case;
(ba) if the case affects, or may affect, the welfare of a child – a child welfare officer of a State or Territory;
(c) with the permission of the Court, a person with a proper interest:
(i) in the case; or
(ii) in information obtainable from the court record in the case;
(d) with the permission of the Court, a person researching the court record relating to the case.
(2) For subrule (1), the parts of the court record that may be searched, inspected and copied are:
(a) court documents; and
(b) with the permission of the Court, any other part of the court record.
(2A) A permission:
(a)for paragraphs (1)(c) and (d) and (2)(b) - - may include conditions, including a requirement for consent from a person, or a person in a class of persons, mentioned in the court record; and
(b)for paragraph (1)(d) - - must specify the research to which it applies.
(3) In considering whether to give permission under this rule, the Court must consider the following matters:
(a) the purpose for which access is sought;
(b) whether the access sought is reasonable for that purpose;
(c) the need for security of court personnel, parties, children and witnesses;
(d) any limits or conditions that should be imposed on access to, or use of, the court record.
(4)Rule 2.32 of the Federal Court Rules applies to the searching of records in a proceeding that is not a family law or child support proceeding.
(5) In this rule:
court document includes a document filed in a case, but does not include correspondence or a transcript forming part of the court record.
Note 1: Section 121 of the Family Law Act restricts the publication of court proceedings.
Note 2: Access to court records may be affected by the National Security Information (Criminal and Civil Proceedings) Act 2004.
It can be seen that r 2.08(3) is expressed in mandatory language as to the matters to be considered in determining whether to give permission under the rule in an individual case. The rule reflects that a transcript obtained in a proceeding will form part of the “court record” but is not a “court document” as defined in the rule. Thus, permission has to be sought to obtain that part of the court record comprising a transcript. Notably, no general “policy” is referred to in r 2.08(3) amongst the mandatory considerations to be considered in determining, in an individual case, whether the permission sought ought be granted.
Curiously, the primary judge did not make any reference to r 2.08 of the Federal Circuit Court Rules. Indeed, it seems the primary judge was uncertain as to what jurisdiction was being exercised in making the orders made with respect to the father’s application in a case. At [4] and [5] the primary judge recorded:
4. The Application in a Case was filed on 16 November 2016. In a sense, my role in this is functus officio because I have issued my judgment in matters, all matters in dispute.
5. The question is really an administrative one being about how the Court deals with circumstances where because of the extraordinary length of the proceedings which led to my judgment, the time over which the proceedings took with gaps in them, the Court took an unusual step of ordering the transcript.
As earlier noted, the primary judge seems to have determined the application in accordance with the “policy” her Honour referred to rather than by any reference to the matters prescribed in r 2.08(3). The effect of the Federal Circuit Court Rules as expressed in s 81(2) of the FCC Act would not seem to make the application of the relevant rule subject to any “policy”, as opposed to any relevant countervailing statutory provision.
Whether the primary judge was, as her Honour described it, exercising an “administrative” function or was exercising jurisdiction pursuant to the Federal Circuit Court Rules is not necessary for us to determine. What can be concluded, however, is that whatever jurisdiction the primary judge was exercising, it cannot be said that it was an exercise of original jurisdiction under the Act such as to give rise to a right of appeal to this Court from that exercise. As earlier noted, the jurisdiction under the Act was exercised in making the final parenting orders and that exercise was complete.
Rule 2.08 of the Federal Circuit Court Rules reflects the obvious conclusion that if, in a particular case, a transcript is obtained by the court that transcript forms part of the court record. Rule 2.08 also reflects the convention that parties to litigation ought have access to the court record of that litigation. In the context of a party having appealed from a decision of the Federal Circuit Court, the provision in r 2.08(2) for a party to seek permission to obtain a copy of the transcript for the purpose of pursuing an appeal (r 2.08(3)(a)) and the matters the court “must consider” in considering whether to grant that permission, reflects conventional notions of access to justice. The purpose for which the father seeks to obtain the transcript is to advance his appeal (r 2.08(3)(a)) and in circumstances where the father cannot afford $12,000 to pay Auscript to himself secure a transcript it is difficult to see how it could be concluded that the permission he seeks is other than reasonable for the purpose of advancing his appeal. Notably, it is an appeal which by its determination will bring an end to the present uncertainties it creates, while it is extant, for a primary caring mother and the three children the subject of the proceedings as to their parenting arrangements.
The father contends that availability of the trial transcript is essential to enable him to advance his arguments in the parenting appeal. Having regard to at least some of the grounds in the parenting appeal it would appear that this is the case.
In the course of the hearing, we ascertained from the mother, also self-represented, that she too would wish to have access to the transcript in meeting the father’s appeal with respect to the parenting orders.
Given the evidence as to the cost of obtaining a transcript from Auscript, it would seem that a significant amount of public money has already been expended by the Federal Circuit Court in obtaining the trial transcript for a trial heard over six days. It would seem unreasonable that such expenditure having occurred, this Court should also expend a similar significant amount of public money to obtain a transcript for the appeal, when that expenditure could easily be avoided by the Federal Circuit Court providing to this Court the transcript.
Rule 2.08 of the Federal Circuit Court Rules does not confine access to that court’s record to parties to litigation. The Attorney-General, and indeed any party “with a proper interest”, may seek the Federal Circuit Court’s permission to, inter alia, obtain a copy of the transcript forming part of that court’s record in this case. This Court has a legitimate interest in ensuring that pending appeals be resolved and indeed there is a statutory directive under s 97(3) of the Act to ensure that proceedings are not protracted.
Whilst this appeal must be dismissed for want of jurisdiction, I would direct, as a direction made in the parenting appeal that the Appeals Registrar, on behalf of this Court, seeks administratively permission from the Federal Circuit Court pursuant to r 2.08 of the Federal Circuit Court Rules as a “person with a proper interest” to obtain a copy of the transcript from the Federal Circuit Court for the purpose of the parenting appeal. For that purpose, the Appeals Registrar is obviously at liberty to publish these reasons to the Federal Circuit Court of Australia.
It can reasonably be observed that the Attorney-General has a legitimate interest in each of :
a)Access to justice for litigants in appeals to this Court;
b)The preservation of public funds; and
c)The resolution of appeals in this Court.
The father, aside from any other challenge he may seek to make elsewhere to the orders made on 20 February 2017, is of course at liberty to make representations to the Attorney-General for the Attorney-General to seek permission under r 2.08 and there is no impediment to the father publishing these reasons to the Attorney-General. It might be that the father is well advised to await the outcome of the application made by the Appeals Registrar of this Court before pursuing such attempts, but that is of course a matter for him.
I would order:
(1) The appeal be dismissed.
(2) In the parenting appeal, the Appeals Registrar be directed to seek, pursuant to r 2.08 of the Federal Circuit Court Rules, permission to obtain a copy of the trial transcript the subject of the substantive appeal from the parenting orders made on 6 April 2016 and to publish these reasons for judgment to the Federal Circuit Court in support.
I only need add that on 28 March this year, this Court corresponded with the Attorney-General inviting him to intervene in this proceeding pursuant to s 91(1) of the Act. There was no appearance by, or on behalf of, the Attorney-General, nor was there any appearance on behalf of the Independent Children’s Lawyer.
Thackray J
I agree with the reasons of Justice Kent and I agree with the orders that his Honour proposes.
Strickland J
I, too, agree with the orders proposed by Justice Kent and the reasons provided for those orders. I just want to add one comment though.
It is unfortunate, to say the least, that this matter has reached the stage that it has, and particularly because the father’s appeal has been held in abeyance pending the resolution of whether he could obtain a copy of the transcript that in fact had been obtained by the trial judge for the purpose of enabling her Honour to hear and determine the parenting proceedings before the Federal Circuit Court.
Hopefully, in identifying a pathway by which not only the father but also the mother can be provided with a copy of the relevant transcript the issue can be resolved and the appeal can proceed and justice can be served.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland and Kent JJ) delivered on 18 May 2017.
Associate:
Date: 22 May 2017
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