Pisani & Pisani

Case [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.…

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AGLC
Pisani & Pisani [2008] FamCAFC 25
Case
[2008] FamCAFC 25
Decision Date

CaseChat Overview and Summary

The appeal in Pisani & Pisani arose from a Family Court of Australia decision, where the appellant, seeking to challenge the findings of fact and conclusions made by the primary judge, encountered significant difficulties due to the unavailability of a transcript of the proceedings. The central issue was whether the appellant's ability to effectively prosecute the appeal was prejudiced by the lack of a transcript, and if so, what remedy was appropriate. The Family Court had previously dismissed the appeal on the grounds that the appellant had not demonstrated how the alleged errors had caused a miscarriage of justice.

The legal issues before the court involved the role and importance of a transcript in appellate proceedings, particularly in family law cases where findings of fact are crucial. The court had to determine whether the absence of a transcript constituted a substantial impediment to the appellant's ability to effectively argue the appeal, and if so, what the appropriate remedy would be. The court considered authorities such as Harris v Caladine, CDJ v VAJ, and Allesch v Maunz, which emphasised the importance of a complete record for appellate review. The court also assessed the adequacy of the notes prepared by the appellant's solicitor as an alternative record.

The court concluded that the unavailability of the transcript did indeed prejudice the appellant's ability to effectively argue the appeal, particularly in relation to the grounds challenging the findings of fact. The court held that appellate courts must have regard to the record of the evidence given at trial, and the absence of a transcript in this case constituted a significant impediment. The notes prepared by the solicitor were found to be inadequate as an alternative record due to the lengthy delay and the complexity of the case. Consequently, the appeal was allowed, and the parenting proceedings were remitted for rehearing by a different judge. The court ordered that there be no order for costs of the appeal.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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