Pisani & Pisani

[2008] FamCAFC 25

FAMILY COURT OF AUSTRALIA

PISANI & PISANI [2008] FamCAFC 25

FAMILY LAW – APPEAL FROM FAMILY COURT OF AUSTRALIA – UNAVAILABILTY OF TRANSCRIPT OF PROCEEDINGS – Established that unavailability of transcript of proceedings prejudiced appellant’s successful prosecution of substantive appeal grounds, particularly those alleging erroneous findings of facts. Held that appellate courts are to have regard to the record of the evidence given at trial. Harris v Caladine (1991) 172 CLR 84; FLC 92-217; CDJ v VAJ (1998) 197 CLR 172; FLC 92-828 and Allesch v Maunz (2000) 203 CLR 172; FLC 93-033 cited. Notes prepared by solicitor for appellant after lengthy delay held to be an inadequate alternate record of proceedings in the circumstances. Remitted for rehearing.

Family Law Act of 1975 (Cth) Part VII

Wyong Shire Council v Paterson [2005] NSWCA 74
Harris v Caladine (1991) 172 CLR 84; FLC 92-217
CDJ v VAJ (1998) 197 CLR 172; FLC 92-828
Allesch v Maunz (2000) 203 CLR 172; FLC 93-033

APPELLANT: MR PISANI

RESPONDENT: MRS PISANI

INDEPENDENT CHILDREN’S LAWYER: ROBB & ASSOCIATES

FILE NUMBER: MLF 3306 of 2004

APPEAL NUMBER: EA 78 of 2006

DATE DELIVERED: 17 March 2008

PLACE DELIVERED: CANBERRA

PLACE HEARD: SYDNEY

JUDGMENT OF: FINN, COLEMAN & BOLAND JJ

HEARING DATE: 8 FEBRUARY 2008

LOWER COURT JURISDICTION: FAMILY COURT OF AUSTRALIA

LOWER COURT JUDGMENT DATE: 20 JUNE 2006

LOWER COURT MNC: [2006] FamCA 536

REPRESENTATION

COUNSEL FOR THE APPELLANT: MR HODGSON

SOLICITOR FOR THE APPELLANT:

COUNSEL FOR THE RESPONDENT: MS CHRISTIE

SOLICITOR FOR THE RESPONDENT: LEGAL AID COMMISSION

COUNSEL FOR THE ICL: MR HARPER

SOLICITOR FOR THE ICL: ROBB & ASSOCIATES

Orders

1. That the appeal be allowed.

2. That there be no order for costs of the appeal.

3. That the parenting proceedings be remitted for rehearing by a judge other than Carter J.

IT IS NOTED that publication of this judgment under the pseudonym Pisani & Pisani 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 SYDNEY

Appeal Number:  EA78 OF 2006
File Number:  MLF 3306 OF 2004

MR PISANI

Appellant

And

MRS PISANI

Respondent

And

ROBB & ASSOCIATES

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. By Amended Notice of Appeal filed 28 June 2007 Mr Pisani (“the husband”) appealed against orders made by Carter J in proceedings between himself and Mrs Pisani (“the wife”) on 20 June 2006.

2. Carter J’s orders, which were made after a six-day hearing earlier in 2006, provided that the three children of the marriage of the parties should reside with the wife, and have contact with the husband from Friday afternoon until Tuesday morning each alternate weekend and from Monday afternoon to Tuesday morning in the alternate week (totalling five nights in each fortnight) and for half of each school holiday period.

3. The husband sought that his appeal be allowed and that the parenting proceedings be remitted for rehearing as soon as practicable before a judge other than the trial Judge. In lieu of the trial Judge’s orders, and pursuant to the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) in its current form, the husband sought that orders be made in the following terms:

   (a)That the children of the marriage [K] born […] February 1996, [G] born […] September 1997 and [T] born […] April 2003 live with the Husband.

   (b)That the said children spend time with the Wife on alternate weekends from after school or day care on Friday to the commencement of school or day care on the following Monday, provided that the Wife is available during this period to care for and supervise the children.

   (c)That the said children spend time with the Wife for one half of all school holiday periods provided that the Wife is available during these periods to care for and supervise the children.

4. The wife resisted the husband’s appeal and sought to maintain the trial Judge’s orders. The independent children’s lawyer (“ICL”) supported the wife’s resistance of the husband’s appeal.

Background

1. The husband was born in 1973 and the wife was born in 1976. The parties married on in 1995 and separated during 2004.

2. There were three children of their marriage. The children having been born in February 1996, September 1997 and April 2003, they were accordingly aged 10, 8 and 3 years at the time of the trial Judge’s judgment. Subsequent to the separation of the parties the children primarily lived with the wife. The children had regular contact with the husband during the post‑separation period.

3. In July 2004 the husband commenced to cohabit in a de facto relationship with a Ms A and in November 2005 the wife commenced to cohabit in a de facto relationship with a Mr K. The husband and Ms A were expecting a child of their relationship in May 2006.

4. For reasons which hopefully will become clearer, some reference to the procedural history of the appeal is appropriate. As noted earlier, the trial Judge’s Reasons for Judgment were published on 20 June 2006, the date upon which she made final orders disposing of the parenting proceedings which she had heard.

5. On 14 August 2006 the husband was granted an extension of time within which to file an appeal against the trial Judge’s orders.

6. On 19 December 2006 the wife made an application seeking that the husband give security for the wife’s costs.

7. Some time after the orders of 14 August 2006 it became apparent that there was no transcript of the trial of the proceedings before Carter J in early 2006. That was through no fault of either of the parties or the ICL.

8. On 1 March 2007 and 30 March 2007 orders were made by a judge of the Appeal Division providing for affidavits to be filed by all parties or their legal representatives attaching the notes of the legal representatives made during the course of the hearing before Carter J.

9. On 30 March 2007, in the light of the absence of a transcript of the trial, the husband was granted leave to file an amended Notice of Appeal adding an additional ground or grounds arising out of the absence of the transcript of the trial.

10. On 28 June 2007 the husband filed an Amended Notice of Appeal which added to the original grounds of appeal a ground arising from the absence of the transcript of the trial.

11. The Appeal Books filed on behalf of the husband contained affidavits from the legal representatives of the husband and the wife and the ICL attaching copies of notes taken by them during the course of the trial.

12. On 20 December 2007 by a majority, the Full Court dismissed the wife’s application that the husband provide security for the wife’s costs.

The trial Judge’s Judgment

1. As perusal of the grounds of appeal articulated in the husband’s Amended Notice of Appeal confirms, the first ground of appeal relates to the absence of the transcript of the trial, the determination of which gives rise to this appeal. The remaining eleven grounds contained in the Amended Notice of Appeal raise issues arising out of the trial Judge’s Reasons for Judgment.

2. The first ground of appeal provided:

   1.   That the unavailability of any of the Transcript of Evidence of the proceedings before Justice Carter in the Family Court at Albury has so severely compromised and prejudiced the Husband’s ability to adequately prosecute and conduct this Appeal having regard to the nature of the Grounds of Appeal set out below and in particular the factual matters raised, that a manifestly unjust and plainly unreasonable result will in all likelihood be achieved, unless the proceedings are remitted for a rehearing at first instance.

3. There is a nexus between Grounds 2 – 12 appearing in the husband’s Amended Notice of Appeal and the first ground of appeal in that the absence of the transcript was submitted to preclude Counsel for the husband from seeking to effectively agitate the other eleven grounds. At the conclusion of the hearing of the appeal, for reasons which need not now be detailed, it was agreed that the Court would give judgment with respect to the first ground raised on behalf of the husband. In the event of that ground finding favour, the husband’s appeal would be allowed and, it was common ground, a new trial before a judge other than Carter J would be ordered.

4. During the course of the hearing of the appeal, Counsel for each of the parents and the ICL agreed that if the first ground agitated on behalf of the husband in reliance upon the absence of the transcript was not upheld, the parties would have the opportunity to make further submissions with respect to the remaining eleven grounds. Such submissions would be made by reference to what came to be referred to during the hearing of the appeal as the “alternate record”, which was the husband’s solicitor’s notes taken during the trial of the proceedings and reproduced pursuant to the orders of the Court referred to earlier.

5. The learned trial Judge produced a comprehensive and cogently reasoned judgment. If it becomes necessary to determine Grounds 2 – 12 inclusive of the husband’s Amended Notice of Appeal, or any of them on their merits, extensive reference would need to be made to the trial Judge’s reasons. For the purpose of considering the first ground upon which the husband relied, less extensive reference to her Honour’s reasons is required.

6. Having identified the competing proposals, accurately there is little doubt, the trial Judge recorded a “short history” upon which we have drawn to some extent by way of background to this appeal. Her Honour recorded the “relevant legal principles” as they then were, the case having been decided on 20 June 2006, some ten days before Part VII of the Act in its current form commenced operation.

7. Under the heading “Conduct of the Hearing” the trial Judge identified the witnesses whose affidavits and oral evidence had been before her and the family reports prepared by a Family Court counsellor.

8. The trial Judge did not consider it either “necessary nor desirable to make an overall finding as to credit” but, for reasons which she detailed, concluded that the wife was “a more reliable witness than the husband”. Her Honour further recorded that the “relationship between the mother and the paternal grandparents [had] become conflictual” and that the “evidence of the husband and the wife and the husband’s parents [had] been coloured by their conflictual relationships.”

9. The evidence at trial was then extensively canvassed by the trial Judge. Sub‑sets of the trial Judge’s review of the evidence included “the wife’s criticisms of the husband at trial” and the “husband’s criticisms of the wife”. Within the latter category the trial Judge considered the topics of “discipline”, “the children being left unsupervised”, “health and hygiene matters”, and “responsibility placed on the children”.

10. Having thus extensively reviewed the evidence, the trial Judge turned to consider the provisions of s 68F(2) of the Act which governed the determination of the proceedings before her. Her Honour considered “wishes” and concluded that the wishes of the eldest two children, which she took into account were “not of themselves determinative”. The relevant “relationships” were considered by the trial Judge. Her Honour referred to the fact that the wife had “been the primary care giver to all the children for all their lives” and to the evidence of the Court counsellor that the “overall” impression of the wife and the children was of a “contented and relaxed family group”.

11. The trial Judge accepted that a positive relationship existed between the children and the wife’s new partner. Her Honour accepted the Court counsellor’s evidence of a “contented and relaxed family group” to have been observed when the husband, the children, the husband’s partner and the paternal grandfather were seen by her. The absence of any suggestion that the children should be separated was recorded by the trial Judge.

12. The “likely effect of changes in the children’s circumstances” was considered by the trial Judge who recorded that “[t]he effect of the orders sought by both the wife and the child representative would bring about only a modest change in the children’s lives”, and accepted that the husband’s proposals “would bring about a substantial change in the children’s lives” in respects which her Honour particularised.

13. Her Honour further recorded as the “important qualification” to the husband’s proposal, that contact between the wife and the children only take place in school terms and holidays “if the wife is available to care for and supervise the children during those times”. Her Honour concluded the effect of the qualification to be that the wife would only be likely to see the children during school holiday periods if “she relinquished her employment”.

14. The trial Judge further recorded that the husband’s proposals appeared to preclude the wife from having a “baby sitter or [for the children] to be minded” by her de facto husband for even short periods of time.

15. Having further referred to the implications of accepting the husband’s proposals for the children, particularly for the youngest child of the parties, the trial Judge concluded that “the proposals advanced by the husband involve a change of great magnitude in the lives of these children and, as seen, they also involve the potential for adverse emotional effect” upon the youngest child which was a “very weighty matter”.

16. Conversely, the practical difficulty and expense of contact was found by the trial Judge not to raise “any problems” so far as the wife’s proposals were concerned.

17. The husband’s proposals were found to “require that the wife give up employment at least during school holiday periods”, her Honour inferring that so doing would have a financial impact upon the wife which would in turn impact upon the “children’s rights and ability to maintain their relationship and direct contact with her on a regular basis would be adversely affected”.

18. The “capacity of each parent or of any other person to provide for the needs” of the children was considered by the trial Judge. Her Honour rejected the “husband’s allegations as to the wife’s ‘parenting deficits’”, finding that, “both parents were able to provide for the day to day and physical needs of the children” albeit requiring “assistance on some occasions”.

19. The trial Judge recorded her “[c]oncerns…as to the capacity of both parents to provide for the emotional needs of the children”, and particularly of the eldest child. Her Honour detailed her reasons for such conclusion that “[b]oth parents have contributed to the hostility which exists between them and the unfortunate effect this has had” particularly in the case of their eldest child.

20. A number of criticisms of each parent were then recorded by the trial Judge. These included the husband’s engagement of a private investigator for “covert surveillance” which continued to the time of the trial for “strategic purposes”, and the wife’s “anger and bitterness” towards the husband by virtue of a number of matters to which her Honour referred.

21. Reference was made to the second report of the Court counsellor, in which it was recorded that “the parental relationship had improved, however only modestly”.

22. The trial Judge further, and amply, demonstrated the basis of her criticisms of each of the parents, her ultimate conclusion being:

    364.    Both parents must understand that all three children and in particular at the moment [K], need to see their parents cooperate and not to be in conflict. Both parents need to communicate with each other at least in a civilised manner. Both parents need to be respectful of the other and the other’s partner. [K] in particular has been affected by the attitudes of both her parents to each other. It is in areas such as this that the real risk as to the children’s emotional well being lies. On the evidence and on my observations I assess the wife as developing an understanding as to this but I regret to say that I have not been able to discern any such recognition in the case of the husband.

23. Having referred briefly to a number of other s 68F(2) factors which did not assume significance, for reasons which she detailed, the trial Judge considered “Any other fact or circumstance that the Court thinks is relevant”. During the course of such discussion the trial Judge considered the recommendation of the Court Counsellor that there be “an equitably shared arrangement”.

24. Her Honour recorded, accurately there is no doubt, that neither parent suggested that there should be “an equally shared residence arrangement” and that such a proposal would not be “feasible” in any event. Her Honour concluded that the orders she would make needed to “be structured so that the children can have considerable time with both parents but also in a way which will minimise possible disputation”.

25. The trial Judge considered the husband’s proposals to entail “an element of hypocrisy” which would not answer the requirement that the children have considerable time with both parents.

26. Under the heading “Conclusion”, the trial Judge reiterated, in summary form, the criticisms which she had earlier made with respect to both the parents. Her Honour’s conclusion that the children should primarily reside with the wife is well encapsulated in her observation that:

    385.    It is clear to my mind that the current arrangements are working and that they are working well. It is clear that there is a risk to [T] should they be changed as dramatically as the husband proposes. Nothing emerges from this case which could justify taking that risk.

The First Ground of Appeal

1. In support of this ground, learned Counsel for the husband spoke to his “Summary of Argument” prepared prior to the commencement of the appeal. During the course of submissions on behalf of the wife, her learned Counsel invited the Court to determine the husband’s appeal on the basis of the notes taken by the husband’s solicitor during the course of the trial, and to disregard the notes taken on behalf of either the wife or the ICL during the course of the trial. Counsel for the ICL joined in such invitation.

2. The challenge agitated on behalf of the husband thus needs to be considered on the basis of the alternate record of the trial in the absence of the transcript, which is a record prepared by and on behalf of the husband, albeit pursuant to a direction made by the Court in that regard.

3. Counsel for the husband submitted that the notes made by his instructing solicitor during the course of the trial, and reproduced in Appeal Book Volume 2, pages 303 – 365 did not “equate” to a transcript of the trial and that it was “apparent that there are a number of omissions, question marks, abbreviations and disjointed parts within these notes”. (Summary of Argument on behalf of the Appellant Husband, page 7).

4. It was further submitted on behalf of the husband in the absence of the transcript the Court “does not have the opportunity to consider the complete evidence of witnesses upon which the Trial Judge based her determination”, and that “the findings of fact make the provision of a Transcript even more critical”. (Summary of Argument on behalf of the Appellant Husband, pages 7 & 8).

5. Learned Counsel for the husband submitted that the absence of the transcript precluded him from seeking to adequately agitate the substantive challenges (Grounds 2 – 12 inclusive) articulated in his client’s Amended Notice of Appeal. It was submitted that this was particularly so having regard to the fact that the challenges to the exercise of her Honour’s discretion were in a number of instances dependent upon impugning findings of fact made by her. It was submitted that only by reference to the transcript could Counsel effectively present and this Court properly determine such challenges.

6. Counsel for the husband pointed to the logical difficulty of demonstrating that these grounds had merit in the absence of the very transcript by reference to which the merit or otherwise of the complaints could be assessed. In the course of his submissions, learned Counsel for the husband confirmed that a significant aspect of the challenges to the trial Judge’s exercise of discretion arose from challenges to findings made by her with respect to allegations each party had made against the other. These complaints fell broadly within two categories, they being that the trial Judge had made unjustifiably critical findings with respect to the husband’s conduct, and had unjustifiably dismissed the husband’s allegations in regard to the conduct of the wife.

1. In the latter context Counsel referred the Court to her Honour’s conclusion that “on the evidence, the complaints individually and in combination lack frequency, chronicity and significant substance.” It was submitted that her Honour’s use of the expression “on the evidence” highlighted the necessity for any challenges to her Honour’s findings to have detailed regard to that evidence. It was further submitted that the terms in which the trial Judge rejected the husband’s allegations emphasised the need to have “the evidence” in the form of the transcript in order to evaluate those challenges.

2. Counsel for the husband sought to advance Ground 1 by reference to a number of other grounds appearing in the Amended Notice of Appeal. Amongst the most significant of these grounds were Grounds 2 and 3, which provided:

   2.   That the Trial Judge was in error in the exercise of her discretion in that she failed to place sufficient weight upon the combined effect of the deficits in the Wife’s parenting capacity namely:-

   (i)her inappropriate disciplining of the children.

   (ii)her abusive and inappropriate language to and in front of the children.

   (iii)her concession that she had left the children for periods of time at home alone or in her motor vehicle unsupervised.

   (iv)her lack of attention to health and hygiene matters in respect of the children.

   (v)her denigration of the Husband and his partner, Ms [A] in the presence of or in the hearing of the children.

   (vi)her endeavours to undermine the relationship between the Husband and the children.

   3.   That the Trial Judge was in error on the evidence in finding that the Husband’s complaints as to the deficits in the Wife’s parenting capacity individually and in combination lacked frequency chronicity and significant substance.

3. Counsel for the husband summarised the “numerous deficits in regard to the wife’s parenting capacity” asserted by the husband at trial in the following terms:

   (i)her inappropriate disciplining of the children.

   (ii)her abusive and inappropriate language towards and in front of the children.

   (iii)her concession that she had left the children for periods of time at home alone or in her motor vehicle unsupervised.

   (iv)her lack of attention to health and hygiene matters in respect of the children.

   (v)her denigration of the Husband and his partner, Ms [A] in the presence of or in the hearing of the children in the most abusive and obscene terms.

   (vi)her endeavours to undermine the relationship between the Husband and the children.

   (vii)her changing of the children’s schools without consultation with the Husband.

   (viii)her refusal to allow the Husband to have any contact with the children for a significant period of time after separation.

   (ix)her refusal to allow [K] to take place [sic] in her first Holy Communion. (Summary of Argument on behalf of Appellant Husband, page 9).

4. Counsel submitted that “significant evidence” had been given in relation to each of the matters and that the trial Judge’s finding that such complaints lacked “frequency, chronicity and significant substance” had not been open to her on a balanced assessment of the evidence.

5. This was said to be particularly so given that the wife had given “oral evidence which substantially confirmed the husband’s criticisms”. (Summary of Argument on behalf of the Appellant Husband, page 9). It was submitted on behalf of the husband that the trial Judge had thus erroneously accepted the substance of the criticisms which the wife made of the husband’s parenting other than with respect to his admitted failure to provide adequate child support.

6. We consider that the submissions regarding Grounds 2 and 3 may have substance and will return to them later in these Reasons.

7. Counsel for the husband sought to advance the claim pursuant to the husband’s first ground of appeal by reference to Grounds 4, 5, 6 and 7. These grounds provided:

   4.   That the Trial Judge was in error in the exercise of her discretion in failing to place sufficient weight upon the wishes of the two eldest children of the marriage as to the parent with whom they wish to reside.

   5.   That the Trial Judge was in error in the exercise of her discretion in failing to follow the recommendations of the Counsellor that if the allegations made by the parties were not made out, that “a well defined shared arrangement together with parental commitment to effect a parenting partnership would be most beneficial to the children in the long term”.

   6.   That the Trial Judge was in error in the exercise of her discretion in inferring from the evidence of the Counsellor that it was not of great importance as to the number of days that were in each “block arrangement” for the children to spend time with either party.

   7.   That the Trial Judge was in error in the exercise of her discretion in placing undue weight upon the engagement by the Husband of a private investigator to conduct surveillance in respect of the Wife to obtain information for strategic purposes and to bolster his case.

8. With respect to Counsel we are not persuaded that reference to any of these grounds is capable of materially advancing Ground 1, whatever we might conclude should it become necessary to consider those grounds on their individual merits. The grounds appear on their face, and from the submissions made in Counsel’s Summary of Argument, to proceed in reliance upon unchallenged findings of fact made by the trial Judge.

9. Counsel for the husband also sought to advance his client’s challenge pursuant to Ground 1 by reference to Ground 8 of the Amended Notice of Appeal which provided:

   8.   That the Trial Judge was in error in the exercise of her discretion in finding that the Husband whilst expressing concern about the children’s undesirable and/or unsafe environment basically did not act upon those concerns or take steps to address them.

10. In essence, Ground 8 asserts that the trial Judge made critical findings of the husband with respect to his dealings with DOCS which were not supportable on the evidence. Counsel for the husband submitted:

    It is submitted that the evidence of the Husband was that he did take steps to act upon and address his concerns in relation to the Wife’s parenting capacity and the risks which he claimed her actions posed to the children’s welfare. His evidence was that he had made certain reports to DOCS and that when he had personally come across the children being left unattended in the Wife’s motor vehicle, he would wait with them for times of up to 10 minutes until the Wife returned. It is submitted that in all the circumstances, there was little the Husband could otherwise do having regard to the nature of his concerns. It is submitted that it should also be borne in mind that the Wife had obtained an interim AVO against the Husband (subsequently dismissed) which would have impacted upon his ability to directly address his concerns with her. The Husband alos [sic] claimed to have raised certain concerns with his previous legal advisors, however he had expressed dissatisfaction with the manner in which he had been represented by them. (Summary of Argument on behalf of Appellant Husband, page 12).

11. It appears to us that the challenge embodied in Ground 8 does not depend upon the transcript for its success. On balance, the ground appears to turn upon findings of fact made by her Honour, rather than to seek to impugn them, although the conclusions reached in reliance upon those findings are clearly controversial. The absence of the transcript does not preclude or inhibit these challenges.

12. To the extent that learned Counsel for the husband sought to advance the challenge pursuant to Ground 1 by reference to Grounds 9 and 11 of the Amended Notice of Appeal, we do not accept that he could successfully do so. Those grounds provided:

    9.   That the Trial Judge was in error in the exercise of her discretion in failing to place sufficient weight upon her finding that the Husband had a very close and loving relationship with the children and that the children had a positive relationship with his partner, Ms [A]

    …

    11. That the Trial Judge was in error in the exercise of her discretion in placing undue weight upon her determination that the Husband had demonstrated an unimpressive appreciation of the financial responsibilities of parenthood in the light of the paltry amount of Child Support that was made prior to Orders made in late 2005, notwithstanding that such amount was paid in accordance with a Child Support Assessment.

13. As is apparent from the submissions made on behalf of the husband pursuant to each ground, the challenges relate to the “weight” given to matters in respect of which the trial Judge made findings of fact which do not appear to be the subject of challenge. In those circumstances, we are not satisfied that the absence of the transcript prevents or impedes Counsel’s ability to agitate either of those challenges.

14. Counsel for the husband sought to advance the challenge contained in Ground 1 by reference to Ground 10 which provided:

    10. That the Trial [Judge] was in error in the exercise of her discretion in her determination upon the evidence that the proposal advanced by the Husband involved a change of great magnitude in the lives of these children and would involve the potential for adverse effect upon [T].

15. Counsel referred the Court in this context to the trial Judge’s finding that “the proposals advanced by the husband involve a change of great magnitude in the lives of these children and, as seen, they also involve the potential for adverse emotional effect upon T (the youngest child)” which was “a very weighty matter”.

16. It was submitted in support of this complaint that:

    … the proposal of the Husband as contained in the orders he sought would not have involved a change of “such magnitude” to the children and would involve “the potential for adverse effect upon [T].” It is submitted that there was no evidence to justify this finding particularly based upon the evidence of the Family Court Counsellor and that it was a matter of surmise on behalf of the Trial Judge having regard to [T’s] age and the fact that she was only spending three consecutive nights apart from her mother in alternate weeks. There had been no evidence to suggest that [T] had been in any way adversely affected after the 2004 orders had changed in November 2005 when she was suddenly spending three consecutive nights away from her mother when previously there had been no overnight contact. These later orders had been made by consent and therefore the Wife must not have considered that there was any detriment to [T] in spending such a significant period of time apart from her in comparison to the previous situation which had existed. (Summary of Argument on behalf of the Appellant Husband, page 13).

17. As Counsel’s submission makes clear, the challenge to her Honour’s finding relates to the “potential for adverse emotional effect” upon the youngest child and to the finding that the husband’s proposals involved “a change of great magnitude”. The ability to agitate the former complaint is not, in our view, adversely impacted by the lack of transcript. That contention cannot be so readily dismissed in relation to the latter aspect of the trial Judge’s finding. If that contention finds favour, the conclusion challenged by this ground becomes contestable.

18. Finally, learned Counsel for the husband sought to advance Ground 1 by reference to Ground 12 of the Amended Notice of Appeal which provided:

    12. That the Trial Judge was in error in the exercise of her discretion in preferring the credit of the Wife to that of the Husband in circumstances where the Wife’s allegations by way of criticism of the Husband’s parenting capacity were not made out.

19. Sensibly, Counsel acknowledged the formidable obstacles to success of challenges to the trial Judge’s finding with respect to credit, with or without the transcript of the trial. Counsel’s submissions in support of the challenge, at least within the context of Ground 1 of the Amended Notice of Appeal, do not persuade us that Counsel would be unable to effectively agitate this challenge in the absence of transcript.

20. Counsel for the wife submitted that the husband’s solicitor’s own notes of the trial precluded Counsel for the husband from disputing the accuracy of the alternate record available to this Court. It was further asserted that the alternate record provided a sufficient record of the trial for this Court to properly evaluate the husband’s various challenges. Fairly, Counsel for the wife conceded that although able to be accepted as an accurate record of the trial, the husband’s solicitor’s notes did not constitute a complete record of the proceedings. It was submitted, in essence, however that to the extent that the notes were incomplete, they were to only a relatively inconsequential degree.

21. It was submitted on behalf of the wife that the bulk of the other eleven remaining grounds of appeal did not require the transcript in order to be effectively agitated. Some of those grounds, as we have earlier accepted, did not on their face require any, or any significant reference to the transcript, or to the alternate record of the trial in its absence. It was thus submitted that Counsel for the husband could not discharge the onus of demonstrating that the absence of the transcript of the trial denied the husband the opportunity to effectively agitate his complaints before this Court.

22. The submissions of Counsel for the ICL, prepared prior to the concession made by Counsel for the wife and the ICL with respect to the alternate record, referred the Court to the judgment of Giles JA in Wyong Shire Council v Paterson [2005] NSWCA 74 and asserted that the absence of transcript in the present appeal was “accommodated” by the husband’s solicitor’s notes of “what was said” at trial.

23. As would be apparent from the submissions of Counsel for the parties and the ICL, Ground 1 raises for consideration the extent to which the grounds of appeal sought to be agitated on behalf of the husband necessarily involve reference to “what was said” at trial. We have earlier recorded that some of those grounds do not appear on their face to require reference to what was said at trial. The absence of transcript does not in our view preclude Counsel from agitating those grounds or unfairly impede him in so doing. Different considerations however apply to Grounds 2, 3 and 10 which involve challenges to the trial Judge’s findings of fact.

Grounds 2, 3 and 10

1. Perhaps the most significant of those challenges relates to the paragraph to which we have earlier referred in the trial Judge’s reasons, in which her Honour said:

   317.    In my view, on the evidence, the complaints individually and in combination lack frequency, chronicity and significant substance.

2. On balance, we are satisfied that to be properly agitated, those challenges would require extensive reference to “what was said” at trial. Having thus concluded, it becomes necessary to consider whether the alternate record of “what was said” at trial is, in all the circumstances, a sufficient substitute for the transcript of the trial.

3. Before doing so however it is perhaps worth briefly noting what the High Court has determined the nature of an appeal to this Court to be. In Harris v Caladine (1991) 172 CLR 84; FLC 92-217 Dawson J said (at 125; 78,486):

   A hearing de novo may be contrasted with an appeal stricto sensu and an appeal by way of rehearing. In an appeal stricto sensu the question is whether, upon the material before the tribunal below, the conclusion which was reached was correct. An appeal by way of rehearing involves the rehearing of the matter as at the date of the appeal, but upon the evidence called before the tribunal below, subject to a power to receive further evidence. On an appeal by way of rehearing the rights of the parties must be determined by reference to the circumstances, including the law, as they exist at the time of the rehearing. But an appeal by way of rehearing does not call for a fresh hearing as does a hearing de novo; the appeal court does not hear the witnesses again. See Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd. [(1976) 135 CLR 616], at pp 619-620; Quilter v. Mapleson (1882) 9 Q.B.D. 672, at p. 676; and Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan, [(1931) 46 CLR 73] at pp. 107-111.

4. The following passage in the judgment of McHugh, Gummow and Callinan JJ in CDJ v VAJ (1998) 197 CLR 172; FLC 92-828 is also instructive for present purposes (at 202; 85,448):

   Appellate jurisdiction in the strict sense is jurisdiction to determine whether the order of the court below was correct on the evidence and in accordance with the law then applicable. In contrast, the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal.

5. In Allesch v Maunz (2000) 203 CLR 172; FLC 93-033 Gaudron, McHugh, Gummow and Hayne JJ said (at 179 – 181; 87,515 – 87,516):

   20. The nature of the appeal to the Full Court is to be discerned from s 93A(2) of the Family Law Act 1975 (Cth) (“the Act”), which was considered by this Court in CDJ v VAJ and in DJL v Central Authority and, also, from s 94 of the Act. Section 93A(2) provides that, subject to s 96, which is concerned with appeals from courts of summary jurisdiction:

   “... in an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact, which evidence may be given by affidavit, by oral examination before the Family Court or a Judge or in such other manner as the Family Court may direct.”

   21. Section 94(1)(a)(i) provides that, subject to s 94AA, which is not presently relevant, an appeal lies to a Full Court of the Family Court from “a decree of the Family Court, constituted otherwise than as a Full Court, exercising original or appellate jurisdiction... under [the] Act”. And s 94(2) provides:

   “Upon such an appeal, the Full Court may affirm, reverse or vary the decree or decision the subject of the appeal and may make such decree or decision as, in the opinion of the court, ought to have been made in the first instance, or may, if it considers appropriate, order a re-hearing, on such terms and conditions, if any, as it considers appropriate.”

   22. The majority in CDJ v VAJ proceeded on the basis that an appeal under s 94(1) of the Act is an appeal by way of rehearing. That is undoubtedly correct. So much is to be discerned from the terms of s 93A(2), in particular its conferral of power to receive further evidence. That is not a power possessed by appellate courts whose jurisdiction is confined to appeals in the strict sense and whose function it is simply to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given. And an appeal under s 94(1) is, as s 93A(2) indicates, to be distinguished from an appeal under s 96 which is a hearing de novo.

   23. For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand. (footnotes omitted).

1. In our view, 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.

2. It seems to us that, where the findings of fact of a trial Judge are challenged, and not able to be dismissed as 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.

3. The alternate record was prepared by the husband’s solicitor and is attached to an affidavit sworn by her pursuant to the directions of the Court made in March 2007. In her affidavit, the husband’s solicitor (as she then was) deposed to having kept detailed notes of all the evidence given during the trial.

4. The husband’s solicitor deposed to having commenced the trial in the absence of Counsel, who was expected to, and did, assume the conduct of the trial subsequent to the day upon which it commenced. The solicitor deposed to having transcribed her notes and “if necessary to make sense of them, I shall put explanatory words in square brackets”. Without being critical of the solicitor, it appears, understandably, that the notes which she took were not transcribed until twelve or more months after they were taken. Again, without being critical, the transcription of a number of pages of the notes appears to involve a considerable element of summarisation and interpretation. (See Appeal Book Vol 2, pages 303 – 448).

5. Portions of the solicitor’s notes appear in a form which approximates that of a transcript. With respect to the husband’s solicitor, for reasons which are not hard to understand, the alternate record reveals considerable summarising of both questions and answers and, at times, again understandably, combinations of what appear to have been questions and answers. As was also submitted on behalf of the husband, the author’s emphasis has been added in places in the alternate record, whilst in other places the answers recorded do not necessarily appear to relate to the questions which appear to have been asked, both questions and answers containing significant and understandable abbreviation.

6. The following brief selection of passages provide an indication of the form which the alternate record assumed:

   a)18.      - 24. Re 25. Do you know about a text message. K. sent W. yes – do you know what it said something (about the baby?)(Hurry up). Did that upset you – what did you say? I asked her if [space] that she was scared. What did you say, I reassured her spoke to. Then Wed – what was troubling her – reassured her.

   b)19.      28 Christmas 2005 – tell the court about presents for children Robo Sapien $160 laconical leggo $30 each one each Game Boy-$400 each-issue number more for [K]. [J’s] phone [words scratched out with arrow over page], memory card for camera – do they take things back and forth? Mobile from grandad, [Judge Carter questioned re age of [J] and balance of presents] eight (8) years old. [K] also received Sony clock radio $60 game board $60 clothes $ me and my partner to pager Toys $100 per footwear – game each – PSC * camera taken to Harvey Norman allowed to choose. [J] ® new phone with a camera, [K] ® chose another game 100 and $120 bigger memory card $100.

   c)50.      30. That’s when [K’s] pony club ceased – we have a sleep – we don’t have to – sometimes I’ll lay down – [M] will – sworn at? 15. [Mother] didn’t get the kids to soccer training – kids sidelined every kid has a go – they were disadvantaged. Mid 2004 (and her sister) Leave kids with [M] if you had to go out? – [M] has looked after the children in my absence.

   d)62.      - If she asked, are you going to Court? – I’d say yes – we want to live with you [space]. When we go to court, can you give this to the judge. Most of the times I have been stuck with an answer – it’s up to the judge.

   e)74.      Q. Forms of discipline before separation?

   A. YesQ. Was she main?

   A. If the children did something wrong done it in front of me.

   Q. depends on incident, [A] I’d change the tone of my voice to let them know I was serious.

   A. no time out strategies not aware till parenting class.

   Q. Par 53 – hand, belt, spoon?

   A. Sometimes in my presence. I’d seek to stop it, the kids would run behind me.

   Q. smacking discipline from Mum, only J and K. Would it happen (often)?

   A. not once a week, not a pattern kids are naughty, like all kids

   Q. did she use other forms?

   A. Yes – room, change voice.

   Q. discipline not particularly different?

   A. Yes – [Q] occasions smacked? A. Yes

   Q. aware of a difference – smacking different –

   A. I didn’t think it was serious enough to smack any child

   Q. what sort of things?

   A. driving [Mother] crazy, not listening, lying around everyday stuff

   …

   (Appeal Book Vol 2, pages 305, 306, 310, 312 & 322, pars 18, 19, 50, 62 & 74).

7. Non-responsive, nonsensical and ungrammatical entries in the alternate record are not necessarily significant given that transcripts of proceedings often reveal these features, and less than logical or coherent answers to questions. The qualitative difference however is that a transcript is an accurate transcription of “what was said” from contemporaneous sound recordings which, if there be uncertainty about the transcription, can be made available for such uncertainties to be clarified. To the extent that the transcript reveals anomalies, it can safely be concluded that they reflect what was actually said, rather than someone’s impressions in that respect.

8. As Counsel for the husband submitted, it is only to be expected that, at least to some extent, the alternate record reflects the impressions of its author, a solicitor for one of the parties to the dispute. The transcript would not suffer from such defects, and would permit the Court to evaluate challenges to findings of fact by reference to a complete, accurate and unedited record of “what was said” at trial in the course of “rehearing” the proceedings to which it relates. As Counsel for the husband also submitted, without the Court transcript, it was not possible for him to demonstrate inaccuracies, errors or omissions in the alternate record. All Counsel could really do was point to apparent anomalies in the alternate record.

9. The issue which arises in this case is thankfully rare, as the absence of the authority in relation to the topic in this country confirms. The decision of the Court of Appeal of the Supreme Court of New South Wales in Wyong Shire Council and Paterson (supra) provides limited assistance. The probabilities are that each case turns on its own particular facts and circumstances.

10. We have severe reservations as to the desirability of determining an appeal which involves challenges to critical findings of fact in the absence of the transcript of the trial. Without in any way criticising the efforts of the solicitor for the husband, for this Court to properly discharge its obligations by way of rehearing, we need to have a complete and accurate record of “what was said” at trial, rather than the best endeavours of a less than dispassionate participant in the proceedings to record what was said.

11. Why we so conclude has been largely explained. Also relevant to our conclusions however are the duration of the evidence, the time which elapsed between the making of the notes and the preparation of the alternate record and the reality that, when the notes were made, the husband’s solicitor did not have, and could not have been expected to have had, any anticipation that her notes would ever be likely to become a substitute for the transcript of the proceedings.

12. Regrettable though it is that so doing will necessitate a new trial of the proceedings, on balance, we are persuaded that the interests of justice would be better served by upholding Ground 1 than by obliging Counsel for the husband to prosecute Grounds 2 – 12 of the Amended Notice of Appeal by reference to an alternate record which, though no-one’s fault, suffers from the deficiencies to which we have referred.

Conclusion

1. Being satisfied that Ground 1 has substance, and it being the consensus of all Counsel that so doing can only result in an order for a new trial, we propose to allow the husband’s appeal and to order a rehearing. Whilst it may be that the outcome of the rehearing will be no different to the decision of the trial Judge of 20 June 2006, we are not persuaded that this would inevitably be the case.

Costs

1. In the circumstances of this appeal, the husband’s success could not possibly result in an order for costs against the wife or the ICL, and in fairness no such order was sought. Only by quite impermissible contorting of the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) could this Court order that the parties receive costs certificates with respect to the appeal and rehearing.

2. In these circumstances we consider that the only option open to us is to make no order for costs. It will then be a matter for the parties to consider what, if any, other options may be open to them.

I certify that the preceding ninety one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate: 

Date:  17 March 2008