Maidment & Insley
[2022] FedCFamC1A 48
•7 April 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Maidment & Insley [2022] FedCFamC1A 48
Appeal from: Insley & Maidment [2021] FCCA 1399 Appeal number(s): SOA 44 of 2021 File number(s): DGC 2380 of 2017 Judgment of: MCCLELLAND DCJ, TREE & GILL JJ Date of judgment: 7 April 2022 Catchwords: FAMILY LAW – APPEAL – Powers of the Full Court – Appeal from a final judgment – Appeal grounds directed to evidence at first instance – Loss of recording of proceedings – Absence of record of first instance proceedings impacts Court’s ability to exercise its jurisdiction – Appeal allowed – Matter remitted for rehearing. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 35, 36
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Aluminium Louvres & Ceilings Pty Ltd v Zheng (2006) 4 DDCR 358; [2006] NSWCA 34
Carlson v King (1947) 64 WN (NSW) 65
DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kuriakin & Kuriakin [2011] FamCAFC 199
Pisani and Pisani (2008) FLC 93-362; [2008] FamCAFC 25
Scrymegeour & Scrymegeour (2014) FLC 93-600; [2014] FamCAFC 130
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35
Teelow v Commissioner of Police [2009] 2 Qd R 489; [2009] QCA 84
Number of paragraphs: 31 Date of hearing: 4 February 2022 Place: Melbourne (via video link), delivered in Sydney Solicitor for the Appellant: Litigant in person Counsel for the Respondent: Mr Dunlop Solicitor for the Respondent: Fair Family Law ORDERS
SOA 44 of 2021
DGC 2380 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MAIDMENT
Appellant
AND: MR INSLEY
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, TREE & GILL JJ
DATE OF ORDER:
7 APRIL 2022
THE COURT ORDERED ON 4 FEBRUARY 2022 THAT:
1.The appeal be allowed.
2.The orders of the Federal Circuit Court of Australia made on 22 June 2021 be set aside on and as from the date upon which further orders are made by the Federal Circuit and Family Court of Australia (Division 2).
3.The matter is remitted for rehearing before a Federal Circuit and Family Court of Australia (Division 2) judge other than the primary judge.
4.The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
5.The Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
6.The Court grants to the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred in relation to the re-hearing.
AND IT IS FURTHER ORDERED THAT:
7.The appellant’s Application in an Appeal filed 24 January 2022 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Maidment & Insley & has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ & TREE J:
This is an appeal from final parenting orders made on 22 June 2021 by the then Federal Circuit Court of Australia. On 4 February 2022, this Court pronounced orders which allowed the appeal, but reserved the reasons for doing so. These are those reasons.
By her Second Amended Notice of Appeal, the appellant set out 33 grounds challenging the orders and judgment of the Federal Circuit Court, with such challenges being amplified in her Summary of Argument. Despite the efforts of the respondent to identify the criticisms of that judgment made by the appellant, the number of grounds, the blending of different challenges within a ground and the inclusion of commentary within the grounds had the effect of obscuring, rather than elucidating, the challenges made by the appellant.
McHugh J in Tame v New South Wales (2002) 211 CLR 317 at [70] (citing Aldisert J, Opinion Writing (1990), p.89) said that where there is “an appellant's brief containing seven to ten points or more, a presumption arises that there is no merit to any of them”: see also in this jurisdiction Scrymegeour & Scrymegeour (2014) FLC 93-600.
However, what was able to be discerned here was that the appeal grounds contained a number of significant challenges that were based upon the oral evidence given at the trial. Such challenges are contained in at least appeal Grounds 1, 3, 8, 9, 15 and 29. Because of COVID-19, the hearing before the primary judge was not conducted face to face, but rather, the parties appeared electronically by way of Microsoft Teams. Whilst a recording was taken and retained of the proceedings, including the oral evidence given, submissions made, and exchanges between the bench and the litigants, and while limited transcript being restricted to evidence of the family consultant was shortly thereafter taken out, the balance of the record of the proceedings has thereafter been irretrievably lost. The appeal grounds that relied upon that lost oral evidence ultimately compel that the appeal should be allowed and the proceedings be remitted for rehearing. The following reasons explain why.
DISCUSSION
An accurate recording of proceedings has become a fundamental and invariable part of the Court’s processes and, ordinarily, a transcript of that recording will be produced to the Court on appeal. While appellants may, at times, be relieved of the obligation to provide a transcript, the consequence of being granted such relief is typically that they will be precluded from advancing challenges which require reference to the oral evidence, submissions or exchanges. Apart from that limited class of cases, the essential nature of the record at first instance is a consequence of the nature of the jurisdiction of this Court on appeal, as set out in the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”).
Section 35 of the FCFCOA Act positively obliges the appeal Court to have regard to the evidence at first instance:
In an appeal, the Federal Circuit and Family Court of Australia (Division 1):
(a)must have regard to the evidence given in the proceedings out of which the appeal arose; and
(b)has the power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be given:
(i)as provided for in Division 2 of Part XI of the Family Law Act 1975; or
(ii)by oral examination before the Court or a Judge; or
(iii)otherwise in accordance with section 73 of this Act.
(Emphasis added)
It is in that context that the appeal Court is empowered to grant the relief contained at s 36(1):
(1) Subject to any other Act, the Federal Circuit and Family Court of Australia (Division 1) may, in the exercise of its appellate jurisdiction:
(a)affirm, reverse or vary the judgment appealed from; or
(b)give such judgment or make such order as, in all the circumstances, it thinks fit, or refuse to make an order; or
(c)set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit; or
(d)award execution from the Court or, in the case of an appeal from another court, award execution from the Court or remit the cause to that other court, or to a court from which a previous appeal was brought, for the execution of the judgment of the Court.
(Emphasis added)
The High Court, in cases such as Fox v Percy (2003) 214 CLR 118, has identified the manner of exercise of the jurisdiction as an intermediate appeal Court conducting an appeal by rehearing in the following way (at [25]):
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”
As this Court there said, that approach was “not only sound in law, but beneficial in … operation”.
(Footnotes omitted)
Accordingly, it may be taken that the availability of the record is implicit to the exercise of such jurisdiction. This was recognised by Coleman J sitting as the Full Court in Kuriakin & Kuriakin [2011] FamCAFC 199 (“Kuriakin”) at [7], where his Honour said:
Although the Court does not need to express an opinion about it, were it necessary to do so the absence of a transcript, by reference to which the correctness or otherwise of the decision of the learned Federal Magistrate could be tested, would be a matter which would weigh heavily in this Court’s approach to determining the appeal as an intermediate appeal court conducting appeals by way of rehearing, as this Court undoubtedly does. The interests of justice would not appear to be well served by having a subordinate Court decision which could not be tested due to the absence of a record of the proceedings in that Court.
We note that similar views have been expressed in other jurisdictions. For instance, in Aluminium Louvres & Ceilings Pty Ltd v Zheng (2006) 4 DDCR 358 (“Aluminium Louvres”), Bryson JA (with whom Handley JA and Bell J agreed) at [32] stated that the absence of the transcript of proceedings before a Conciliation Commission Arbitrator was a “serious shortcoming, because it greatly impedes the right of appeal and the due exercise of powers” of the appellate body. Also at [32], His Honour continued “[a]ccording to circumstances, the absence of a sound recording could fairly readily lead a Presidential member to a decision to require a rehearing; although that result would not be automatic”.
That decision concerned the absence of the transcript of the Statement of Reasons of the Conciliation Commission Arbitrator, rather than the evidence presented before the arbitrator. In that case, the Court of Appeal held that the absence of the transcript did not vitiate the proceedings, in circumstances where the solicitor for the respondent in that case had made full and detailed notes of the Statement of Reasons which were not disputed.
On the other hand, Fraser JA in the Queensland Court of Appeal in Teelow v Commissioner of Police [2009] 2 Qd R 489 (“Teelow”), by reference to several authorities, reasoned at [26]–[28] that the absence of the transcript may simply mean that error is unable to be demonstrated, leading to the dismissal of the appeal. However, it does not appear that the relevant statute engaged in that case contained the mandate imposed on this Court by s 35 of the FCFCOA Act.
Further, s 36 of the FCFCOA Act empowers the appellate Court, where error is established, to make the appropriate orders, having regard to all of the evidence before the appeal Court (including what was before the Court at first instance). Indeed, the power to do so is an essential component of the exercise of the Court’s appellate jurisdiction, at least where the appeal involves live questions as to factual conclusions and the manner in which they were arrived at.
In commenting upon the nature and exercise of the appellate jurisdiction of this Court, the Full Court in Pisani and Pisani (2008) FLC 93-362 at [77] observed:
… [The] High Court’s repeated and consistent references to “the evidence” in the context of a rehearing by this Court is more than coincidental, and reinforces the importance of this Court having regard to the record of the evidence at trial for the purpose of such rehearing.
In this context, as implicitly observed by Coleman J in Kuriakin, depriving this Court of the capacity to assess the evidence, where it is necessary to do so to address the issues on appeal, strikes at the function of the Court, given the essential nature of the record at first instance in discharging the functions set out in ss 35 and 36 of the FCFCOA Act.
Because this appeal concerned, to a substantial degree, challenges to the use to which the oral evidence was applied, and how or whether regard was had to it, the result in this instance must be to set aside the judgment and remit it for further hearing. Despite the appellant’s desire that this Court re-exercise the discretion, the absence of the record at first instance means that this simply cannot occur.
It should not be thought that this will always be the result where there is an absence of the record of the proceedings at first instance; for example, where issues on appeal do not concern the evidence, this would not be a necessary result. Similarly, where evidence related issues are confined and could be answered either by agreement as to the evidence or in some other manner, as was the case in Aluminium Louvres, then such a result would not automatically follow. But that is not the case here.
PARENTING ARRANGEMENTS PENDING FURTHER HEARING
Pending the further consideration of the substantive arrangements for the children by a judge of Division 2 of the Federal Circuit and Family Court of Australia, the orders made by the primary judge should remain in effect. It is necessary that the consideration of the children’s circumstances pending rehearing be on the basis of the circumstances that now confront the children, such consideration being only available when the parties adduce evidence of such and the matter comes back before that Court.
FURTHER ISSUES
The appellant sought to adduce further evidence on appeal. By virtue of the result otherwise arrived at, it is not necessary to consider that application and it will now be dismissed. However, it may be observed that the late filing of that evidence, such that it left insufficient opportunity for the respondent to deal with it, and the failure on the part of the appellant to comply with the requirements of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) as to the filing of evidence, would have formed a solid basis for its rejection in any event.
Finally, as the appellant has succeeded on a question of law, and as the appellant and respondent have made the relevant applications, costs certificates are granted in accordance with ss 6, 8 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth).
GILL J:
I agree with the orders and reasons of McClelland DCJ and Tree J. I would, however add the following.
In Teelow, the Queensland Court of Appeal was considering the conduct of an appeal by way of rehearing from the Magistrates Court to the District Court, being an appeal governed by principles similar, if not identical, to those in play here.
Despite the loss of the recording of the proceedings, the appeal was refused. However, the circumstances were distinctly different to those here.
In Teelow, the Court accepted, consistently with Coleman J in Kuriakin, what had been said by Jordan CJ in Carlson v King (1947) 64 WN (NSW) 65 (“Carlson”) at 66, which is that there is a duty imposed upon a court to “make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal”. The complaint in Teelow, however, was restricted to the loss of the recording of the reasons given by the Magistrate, as opposed to the current circumstances where the complaint is as to the loss of the record of the evidence. Importantly, at [15], the Court went on to observe that, in the case before it, there had been no suggestion that “the absence of a written record of the magistrate’s reasons prejudiced the applicant or that satisfactory evidence of the reasons could not be adduced”.
That is not the case here, where the contention is as to errors based upon the evidence, and where it cannot be anticipated that, in the absence of a recording of the proceedings, an adequate account of the oral evidence could be given. In this case, it is not a deficiency that can be remedied by recourse to the judge’s, or counsels’, or the solicitors’ notes of the proceedings.
As McClelland DCJ and Tree J identify above, this absence of record in the face of such a challenge on appeal strikes at the function of the Court in determining an appeal.
Although this issue does not typically arise in a House v The King (1936) 55 CLR 499 challenge to a discretionary judgment, given the essential nature of the record at first instance in discharging the functions set out in ss 35 and 36 of the FCFCOA Act, the power of the Full Court to correct in such circumstances may be necessarily implied from those sections. Such an approach was approved by the High Court in DJL v Central Authority (2000) 201 CLR 226 at [25] (“DJL”) where Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ observed:
The Family Court is thus not a common law court as were the three common law courts at Westminster. Accordingly, it is “unable to draw upon the well of undefined powers” which were available to those courts as part of their “inherent jurisdiction”. The Family Court is a statutory court, being a federal court created by the Parliament within the meaning of s 71 of the Constitution. A court exercising jurisdiction or powers conferred by statute “has powers expressly or by implication conferred by the legislation which governs it” and “[t]his is a matter of statutory construction”; …
(Footnote omitted)
Even if the power was not inferred as a matter of statutory construction, the plurality in DJL further identified at [25] that the Full Court:
… has “in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred”.
(Footnote omitted)
On either measure, the Court on appeal should be taken to have the capacity to deal with the issue by allowing the appeal and remitting the matter for rehearing.
I agree that the appeal should be allowed and the matter be remitted for the reasons given by McClelland DCJ and Tree J, and further that the Application in an Appeal should be refused and that costs certificates should be granted. The failure of the Court to comply with the obligation identified by Jordan CJ in Carlson and Coleman J in Kuriakin is sufficient to mean that, for the purposes of the Federal Proceedings (Costs) Act 1981 (Cth), the appeal has succeeded on an error of law.
I also agree that, pending the further consideration of the substantive arrangements for the children by a judge of Division 2 of the Federal Circuit and Family Court of Australia, the orders made by the primary judge should remain in effect.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland, and Justices Tree & Gill. Associate:
Dated: 7 April 2022
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