Leighton and Carey

[2009] FamCAFC 187

FAMILY COURT OF AUSTRALIA

LEIGHTON & CAREY [2009] FamCAFC 187

FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – Unable to hear the appeal without transcript – Court in an unsatisfactory position given seriousness of issues involved – Matter adjourned until transcript obtained at the court’s expense

Pisani and Pisani (2008) FLC 93-362

APPLICANT: Mr LEIGHTON

RESPONDENT: Ms CAREY

INDEPENDENT CHILDREN’S LAWYER: Mr Kent

APPEAL NUMBER: NA 103 of 2008

FILE NUMBER: BRC 11394 of 2007

DATE DELIVERED: 25 September 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Warnick, Thackray and O’Ryan JJ

HEARING DATE: 25 September 2009

REPRESENTATION

APPLICANT: Applicant appears in person

RESPONDENT: Respondent appears in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Kent

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Queensland

Orders

1. That the hearing of the appeal be adjourned to a date to be fixed.

2. That should the appellant wish to file any further summary of argument following the receipt of the transcript in this matter, he file and serve such further summary of argument not less than 21 days before the date fixed for the hearing of the appeal.

3. That the respondent file any further summary of argument sought to be relied upon not later than 14 days before the date fixed for the hearing of the appeal.

4. That the Independent Children’s Lawyer file any further summary of argument sought to be relied upon not later than 7 days before the date fixed for the hearing of the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Leighton & Carey 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: NA103 of 2008
FILE NUMBER: BRC 11394 of 2007

Mr LEIGHTON

Applicant

And

Ms CAREY

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

WARNICK J

1. The Court has decided that it is unwilling to determine this appeal without the benefit of transcript, and that is for a couple of reasons.  One is, perhaps, some expedition, but the other is what we perceive to be the utility of a rather complete transcript.  We will not follow the path of asking Mr Leighton to identify relevant passages, except in this sense:  we note that the witnesses were as set out in the helpful summary prepared by Mr Kent, and it may well be that there are one or two, at least, witnesses there, whose evidence is of no significance.   It may be that there are passages of evidence, even of other witnesses that the parties can agree would be of no assistance, although, perhaps with the effluxion of time, and the nature of evidence, it would be hard to identify now.

2. But in any event, we intend to adjourn the hearing of the appeal, and obtain the transcript, at court expense, but would ask the parties if they can, in the next short period – 20 minutes or so, perhaps – to discuss possible agreement that the evidence of particular witnesses is not required.  But I think for myself, I would want you to be confident that there was nothing to be found in any excluded evidence.  We do not want to get three quarters of the transcript and then find ourselves wishing that we had another 10 percent, for example.  So unless you are very confident that something is not going to assist us at all, then we should obtain the transcript.

3. I will express my reasons as to why I have come to that decision, simply because, although we are agreed on the result that I have just described, we have not prepared any joint reasons, and that gives the other members of the bench the opportunity of disagreeing with anything I might say.  But in short, having heard what we have heard so far, and having regard to the seriousness of the matter in issue, I simply think it too much of a risk that the court will be in an unsatisfactory position in deciding whether the appeal ought be allowed or not, without transcript.  Although I did not consider that anything said in the case of Pisani (2008) FLC 93-362, to which Mr Kent referred us, rendered what we earlier said about a mandatory requirement for transcript incorrect, nonetheless, observations in that case are particularly pertinent to the view that I have taken on the desirability of obtaining transcript. I refer, in particular, to paragraph 78 of that decision, where the court said:

   It seems to us that where the findings of fact of a trial judge are challenged and not able to be dismissed, there is palpably lacking in possible merit, a rehearing by way of appeal by this court requires the availability of a reliable record of what was said at trial.

4. I think it not necessary that this particular bench reconvene to continue the hearing, although it might be quite possible and perhaps, if possible, then preferable, that that occur.  But it may be that another bench hears the appeal.

5. So, the order at this stage that I propose is that the hearing of the appeal be adjourned.  I will formally make the orders after the other members of the bench have said anything that they want to say but I think that is possibly all I need to do in terms of the process itself.  The rest will be an internal arrangement, in respect of which I do not know that I need order the registrar to do anything in particular.

THACKRAY J

1. I agree with the reasons expressed by the presiding judge, and I would make the order that he has foreshadowed.

O’RYAN J

1. I also agree with the reasons of the learned presiding judge, and would make the orders as he outlined.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate: 

Date:  19 October 2009