Pascoe & Larsen (No 3)
[2023] FedCFamC1A 59
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Pascoe & Larsen (No 3) [2023] FedCFamC1A 59
Appeal from: Pascoe & Larsen [2023] FedCFamC2F 392 Appeal number(s): NAA 64 of 2023 File number(s): WOC 655 of 2021 Judgment of: ALDRIDGE J Date of judgment: 26 April 2023 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks to obtain a copy of the audio recording of the hearing – Where the appellant challenges the way in which the primary judge conducted the hearing – Orders made for the audio recording to be released to the appellant following payment of the necessary fees. Cases cited: Huda & Huda and Laham (2018) FLC 93-837; [2018] FamCAFC 85
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Number of paragraphs: 9 Date of hearing: 26 April 2023 Place: Sydney The Appellant: Litigant in person Solicitor for the Appellant: Broun Abrahams Burreket Solicitor for the Independent Children’s Lawyer: Venus & Smart ORDERS
NAA 64 of 2023
WOC 655 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR PASCOE
Appellant
AND: MS LARSEN
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
ALDRIDGE J
DATE OF ORDER:
26 April 2023
THE COURT ORDERS THAT:
1.Subject to the appellant paying any necessary fee, the Court obtain and release to the parties (in the manner to be determined by the appeal judicial registrar) the audio recording of the hearing conducted on 24 February 2023.
2.The appellant’s Summary of Argument, which is due to be filed and served on or before 4.30pm on Wednesday, 10 May 2023 is to identify with precision the precise passages of the transcript in respect of which he will ask the Court to listen to the audio.
3.The costs of the respondent and the Independent Children’s Lawyer are reserved to the hearing of the appeal.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pascoe & Larsen (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
This is an application by the appellant to obtain a copy of the audio recording of a hearing which was conducted before a judge of the Federal Circuit and Family Court of Australia (Division 2) on 24 February 2023. At that time the orders that were made were that the mother, the respondent to the appeal, have sole parental responsibility for making decisions concerning the child’s health and any medical treatments she may require. In addition the appellant was ordered to pay the respondent’s costs of that application on an indemnity basis.
A Notice of Appeal was filed on 22 March 2023. It is apparent from the grounds, which are somewhat repetitive, that the primary challenge to his Honour’s orders is the manner in which the hearing was conducted. In particular, the grounds emphasise what is said to be the primary judge’s excessive intervention and refusal to let the appellant expound his case.
A transcript has been obtained. The hearing was relatively short and the transcript covers just 15 pages.
Only one of the grounds refers to the tone of his Honour’s interventions which is Ground 4 and refers to the primary judge badgering the appellant, speaking over him, stopping him from making his submissions and presenting his case “often in a condescending tone”.
If that is all that occurred that would be unlikely to be a matter of particular relevance but it is clear enough from the appellant’s affidavit and his submissions that he asserts that the behaviour of the trial judge went beyond that. It is well established that excessive intervention by a trial judge can be such as to give rise to a want of procedural fairness (see for example Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; Huda & Huda and Laham (2018) FLC 93-837). Included in such considerations raised by excessive interventions are questions of the tone and the manner of the intervention.
The matter having been squarely raised is appropriate then the audio be released, but there is force in the submissions made by the respondent and the Independent Children’s Lawyer (“the ICL”) that this will increase costs of the appeal. That is so, but can be somewhat ameliorated by the fact the transcript is short and can be further ameliorated by an order being made requiring the appellant to identify with precision the passages of the transcript in respect of which he will rely on the audio. Further, if this ultimately turns out to be a fruitless exercise, the response to it can be further ameliorated by an order for costs in due course.
Therefore there will be an order that subject to the appellant paying any necessary fee, the court obtain and release to the parties, in a matter to be determined by the appeal judicial registrar, the audio recording of the hearing conducted on 24 February 2023.
I make the further direction that the appellant’s Summary of Argument which is due to be filed and served on or before 4.30 pm on 10 May 2023 is to identify with precision the precise passages of the transcript in respect of which he will ask the Court to listen to the audio.
The costs of the respondent and the ICL are reserved to the hearing of the appeal.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 3 May 2023
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