Sampson & Hartnett (Provision of Transcript) - [2010] FamCAFC 220

FAMILY COURT OF AUSTRALIA

SAMPSON & HARTNETT (PROVISION OF TRANSCRIPT)

[2010] FamCAFC 220

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Provision of transcript – factors relevant in support of an application for the provision of transcript at the Court’s expense – whether there are merits in the grounds of appeal which justify the provision of transcript.

Family Law Act1975 (Cth) s 60CC, s 117
Family Law Rules 2004 r 22.18(1), r 22.18(2)

Forbes & Bream [2008] FamCAFC 189
Friscioni & Friscioni(Application for transcript) [2009] FamCAFC 48
House v R (1936) 55 CLR 499
Trahn & Long (No. 2) [2008] FamCAFC 194

APPLICANT:

Ms Sampson

RESPONDENT:

Mr Hartnett

FILE NUMBER:

SYF

3827

2004

APPEAL NUMBER:

113

2009

DATE DELIVERED:

4 November 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Canberra

JUDGMENT OF:

Bryant CJ, Finn & Ryan JJ

HEARING DATE:

3 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Self-represented Litigant

SOLICITOR FOR THE APPLICANT:

Self-represented Litigant

COUNSEL FOR THE RESPONDENT:

Self-represented Litigant

SOLICITOR FOR THE RESPONDENT:

Self-represented Litigant

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

Orders

The wife’s application in the appeal filed 23 December 2009 seeking that the Court provide the transcript of the hearing before Jordan J, at its expense, be dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Sampson & Hartnett (Provision of Transcript) 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 CANBERRA

Appeal Number: EA 113 of 2009
File Number: SYF 3827 of 2004

Ms Sampson

Applicant

And

Mr Hartnett

Respondent

REASONS FOR JUDGMENT (revised*)

Background

This interlocutory application is about whether the Court should provide, at its expense, a full transcript of a 14 day hearing to enable the wife to prosecute her appeal against parenting orders relating to the two children of the husband and wife, K born in April 2003 and T born in November 2004, and the considerations that are relevant to our decision.
A parenting matter, in which the initial proceedings were the subject of a successful appeal, involving a dispute between the parties over the care arrangements for their two children was re-heard by Jordan J over a period of 14 days in April, May, July and August 2009. The hearing concluded on

14 August 2009 and judgment was subsequently delivered on 25 August 2009.
In a 44 page judgment his Honour traversed the many issues raised by the parties. At paragraphs 26 to 30 of his reasons, his Honour said the following regarding the issues in dispute:
26.Identifying the factual issues and distinguishing those of significance from those of limited value, has remained one of the consuming aspects of the case. The affidavit material filed by the parties is vast and appears to canvass almost every troublesome aspect of the relationship between them for the past 12 years. The wife sought to rely on no less than 26 witnesses, some of whom swore affidavits over three years ago. Some of the complaints of the witnesses were about matters which appeared of little or no current relevance and some affidavits, or portions of them, were excluded. Some of the evidence of the deponents did, however, corroborate some aspects of the wife’s case.
27.The testimony of a number of the husband’s witnesses also provided dated evidence of marginal relevance.
28.The material evidence disclosed a vast degree of conflict in relation to almost all aspects of the history of the case. Whilst each party made some faint concessions, in reality, they each sought to hold the other almost entirely responsible for all of the difficulties in the relationship and each of the multitude of problems encountered by each of them and by their children in the five years since separation.
29.Initially, the parties and their legal representatives chose to limit the scope of the issues canvassed during the trial. They chose not to re-visit issues relating to the conduct of the parties towards one another during the relationship and the focus of the exercise was very much in relation to events post-separation and limited largely to parenting style issues.
30.However, issues emerged in the lead-up to the trial and some developed in the course of the trial which resulted in a change of approach as the case progressed.
One of the issues emerging late in the proceedings was that of family violence alleged by the wife against the husband. At paragraph 48 and 49, his Honour said:
48.As the cases were originally presented, the central factual issue for determination related largely to the attitude of each of the parties to the rights of the children to enjoy positive relations with the other parent. That remains a very important aspect of each of the cases presented.
49.As a consequence of the developments during the trial described above, the wife’s case was to fundamentally change. Family violence became a central theme and she reversed her previous attitude to shared parenting and equal or significant time. She contended that it was necessary to place the children with her for their safety and protection and argued that shared parenting was no longer in the children’s best interests.
In the end the orders made by his Honour were not dissimilar to those made by Moore J in the first proceedings. Essentially the orders made by his Honour provided for the children to live with the husband in Sydney and if the wife remained living in Town W in Southern Victoria, (“Southern Victoria”) then for the children to spend time with her during each of the school holidays, on special occasions and for other periods during the school term.
In the event that the wife resided in Sydney, which she had been doing for some time, and had indicated that she was prepared to do in the future, the children would live with each parent on a week-about basis and share school holidays and special occasions. Whilst the orders of Moore J in the first proceedings were couched in more mandatory terms as far as the wife’s residency in Sydney was concerned (the point upon which the appeal against the decision was allowed), the effect of the orders was remarkably similar. That is to say, in each case after a long hearing where both parties were represented, the Court found that the children should remain living in Sydney with the husband and that if the wife remained in Sydney then the children’s time should be shared equally with their parents.

The Application

Following the decision of Jordan J, the wife lodged a Notice of Appeal. At the time of the hearing of this application before us, both parties were unrepresented although an Independent Children’s Lawyer appeared on behalf of the children.
There are 13 grounds which will be discussed later in our reasons.

The relevant Family Law Rules

At the time of settling the Appeal Book index with the Regional Appeals Registrar, the question of provision of the transcript arose. Rule 22.18(1) of the Family Law Rules 2004 (“the Rules”) provides that “the appellant, or if so ordered, the cross-appellant is responsible for preparing the appeal books, including arranging to obtain any transcript required to be included in the appeal books”.
Rule 22.18(2) enables the Court to order either the respondent or the Regional Appeal Registrar to prepare the appeal books, if “exceptional hardship” would otherwise be caused to the appellant. However, a note to rule 22.18(2) states that if the Regional Appeal Registrar prepares the appeal books, the appellant or cross-appellant remains responsible for provision of the transcript. As a practical matter this is because the documents other than transcript are on the court file and can be photocopied by the Regional Appeal Registrar. The transcript on the other hand must be obtained from a third party provider at a fee which would have to be paid by the Court.
The wife asserts that she cannot afford to obtain a copy of the transcript as required by the Rules and has filed an application seeking that the Court provide the transcript at the Court’s expense. It is this matter which is now before us for decision.
The question of the provision of transcript by the Court was dealt with by the Full Court in Forbes & Bream [2008] FamCAFC 189. The Full Court said (at paragraphs 28-36):
(b)The cost of transcript
28.From the inception of the operation of the Family Court in 1976, transcript has not been routinely provided to parties. The cost is not provided for in the budget of the Court, and the cost of doing so routinely, would impinge on other necessary expenditure for the proper operation of the Court. Thus in hearings of matters at first instance parties will be responsible for the cost of transcript if they wish to obtain it. However, the Court has from time to time judiciously provided transcript to parties where it is demonstrably in the interests of justice to do so. A common example is the provision of transcript of the evidence of an expert witness in a parenting case.
29.There is no legislative basis in the Family Law Act 1975 (Cth) or the Family Law Rules 2004 (“the Rules”) providing for such transcript to be made available by the Court. The Rules relating to appeals deal specifically with the obligation to provide a transcript. Rule 22.23 [sic] states that the “appellant or, if so ordered, the cross-appellant must arrange to obtain the relevant parts of the transcript of the hearing…”. In contrast, rule 22.24 [sic] enables the Court to order that the Appeal Registrar, rather than the appellant, prepare the appeal books, if “exceptional hardship” would otherwise be caused to the appellant. However, the note to rule 22.24 clarifies that even if the appellant is excused from preparing the appeal books because of “exceptional hardship”, the obligation remains upon the appellant to obtain the transcript of proceedings pursuant to rule 22.23.
30.It logically follows from the Rules that ordinarily the appellant should bear the cost of provision of the transcript at least in the first instance. This has certainly been the case in practice in appeals heard in this Court. However, in this case the husband states that he is impecunious and cannot afford to obtain a transcript so as to comply with the Rules. The question then is whether this Court has a residual discretion to order provision of a transcript at the Court’s expense in such circumstances.
31.It has been assumed (without ever being decided) by this Court in several cases that such a discretion exists (see eg Andrews & Andrews (Re: Subpoena) (2007) FamLR 358 and Oakley & Cooper [2008] FamCAFC 129, [sic] but compare S & S (unreported, Full Court of the Family Court of Australia, Lindenmayer, Kay and Gee JJ, 20 June 1994) and Zabaneh v Zabaneh (1991) FLC 92-239).
32.In WJD & TEK (1998) 72 ALJR 1323 a majority of the High Court (McHugh J, with whom Callinan J agreed) said the following:
4.In the brief proceedings in the Full Court which ultimately led to the dismissal of the appeal, the only question that was discussed was whether the Full Court could order the provision of a transcript free of charge. The court took the view that it had no such power. There is no reason as presently advised to doubt the correctness of that view.
33.However, in the same case, Kirby J said:
7.In a proper case, this Court would, in my view, allow special leave to appeal to consider a refusal on the part of the Family Court of Australia to exercise its suggested discretion to:
1.Waive strict compliance with its rules relating to the filing of transcript in an appeal;
2.Order the provision of a transcript by Auscript if that were required in the interests of justice;
3.Dispense with filing of appeal papers in a formal sense; or
4.Ensure that officers of the Family Court gave assistance to a party to prepare the appeal papers where it would impose hardship on the appellant to do so. [See Family Court Rules, r 15(2).]
8.Rules of Court are the servants and not the master of the attainment of justice in our courts, as has been often said. [Clune v Watson [1882] Tarl 75; Bay Marine v Clayton Country Property (1986) 8 NSWLR 104 at 108]. It cannot be for the Executive or its agencies by the provision of funds for legal aid, or otherwise, effectively to control access to the appellate process of the courts and, in particular, the courts established under Ch III of the Constitution.
9.However, I agree that this case is not an appropriate vehicle to allow any of the foregoing issues to be considered. The findings of the primary judge were very strong. They appear to render the prospects of success in an appeal very small indeed. The applicant also indicated that he would wish to call new evidence in an appeal and that would rarely be allowed.
34.The Family Law Act is silent on the question of the provision of transcript and provides no obligation, nor in our view any impediment, to the Court providing transcript in a particular case. Although Rules 22.23 and 22.24 place an obligation on the appellant (or cross-appellant) to provide transcript for insertion in the appeal book, the Court may dispense with the application of the Rules if warranted in a particular case. On one view this could mean simply that the requirement to provide transcript is waived but we do not consider the meaning to be necessarily so constrained.
35.If the interests of justice require it, and the appellant or cross-appellant or party seeking it cannot afford the cost of transcript, the Court may in the exercise of its discretion agree to provide the transcript of relevant parts to enable the appeal to proceed. In Fortnum & Fortnum (No 2) [2008] FamCAFC 73 Finn J described this as part of the “supervisory role of the Full Court”. We would add to her Honour’s explanation the “supervisory power of the Court” may necessarily, in a particular case, require the Court to have transcript to fulfil its statutory function under s 94(2) of the Family Law Act. Thus the Court hearing an appeal may order the provision of transcript as an exercise of its incidental powers.
36We do not need to define the circumstances in which the discretion may be exercised. Suffice it to say that we doubt whether it would be exercised in anything other than exceptional cases. Furthermore, we consider that the vast majority of such cases will relate to parenting orders, where the necessity to arrive at a result in the best interests of the child may provide compelling reasons for transcript to be provided at the Court’s expense if the parties are impecunious.
Rules 22.18(1) and 22.18(2) have replaced Rules 22.3 and 22.4 referred to in Forbes & Bream (supra).
Thus in a line of authority it has emerged that the absolute view once taken about the provision of a transcript by the Court has been replaced by a more flexible approach (Forbes & Bream (supra), Friscioni & Friscioni(Application for transcript) [2009] FamCAFC 48 and Trahn & Long (No. 2) [2008] FamCAFC 194). This approach would enable the Court to pay for a transcript where the interests of justice required the provision of transcript so an appeal could be adequately prosecuted.
However, a complete transcript may not be necessary for the prosecution of an appeal. Deciding this requires an examination of other factors relevant to the interests of justice in the particular case and more broadly. We mean by this that where resources are finite, the provision of transcript for a 14 day hearing where the merits of the appeal were doubtful, for example, might prevent the provision of transcript in other more deserving cases.
Although in Forbes & Bream (supra) the Court indicated that it did not need to define the circumstances in which the discretion of the Court to provide the transcript at its expense should be exercised, it seemed to us that it would be of assistance to the applicant in this case to have some indication of the matters about which she would need to satisfy the Court in support of her application. We did so cognisant of the fact that this is a discretionary decision which will require consideration of the circumstances of each case and that the matters relevant to exercise of discretion cannot be circumscribed. However, there will be common factors identifiable in many such cases. We thought it would be helpful to identify these whilst acknowledging the weight to be attributed to any particular factor will vary from case-to-case. While the list of factors is not closed, those that we think may be of relevance in support of such an application are:
(a)Whether the case is a financial or parenting case.
(b)Whether the whole transcript or part thereof is necessary for the determination of the appeal or part of the appeal.
(c)The likely cost of the relevant transcript and whether the applicant can afford all or part of the cost of the transcript.
(d)The proportionality of the cost of the transcript to the appellant’s anticipated costs in relation to the whole appeal, including the preparation of the appeal book(s).
(e)The prima facie merits of the appeal.
(f)Whether the question of providing a transcript can be left to the Full Court hearing the appeal.
(g)Any other relevant facts or circumstances.
In including in this list the merits of the appeal, we observe that such consideration is not uncommon in procedural or interlocutory issues relating to appeals and arises in circumstances, for example, where a party seeks security for costs, an extension of time or a substantial period of adjournment, to name a few. We also observe that while, for example, a refusal to extend time in which to appeal will mean that the applicant will be precluded from pursuing an appeal, a refusal to provide transcript will not have the same effect.
In addition, the Full Court hearing the substantive appeal is itself not precluded from ordering the provision of transcript should different circumstances or facts emerge from those presently before us.
Having identified these factors in discussion with the parties we turn to consider their application to the facts in this case.

Whether the case is a financial or parenting case

This case is a parenting case and accordingly requires careful consideration of the grounds, given that the decision appealed was governed by the requirement that making orders in the best interests of the children are paramount.

Whether the transcript or part is necessary for the determination of the appeal or part of the appeal

It is convenient to consider this aspect together with other factors.

The likely cost of the relevant transcript

There was some difference between the parties as to costs. The wife asserted the cost for the entire transcript was $12,000. The husband asserted it was $1,500 per day which would be a total of $21,000. The best we can do is to note the cost to be between $12,000 and $21,000.

Whether the applicant can afford all or part of the cost of the transcript

We accept that the wife cannot afford the cost of the transcript but her financial circumstances require noting as they are relevant to the exercise of our discretion. The applicant says that her legal fees for the past five years total about $1.09 million. She deposes to having debts to litigation lenders and legal funders of approximately $839,000 and liabilities to family and friends of $170,500. The wife received a grant of legal aid prior to the last hearing. She is in receipt of a single parent pension, family tax benefit and rent assistance. She does not currently work.

Unsurprisingly, the husband informed us that he too had spent a significant amount on his legal costs for the two hearings, an appeal, a case stated as well as an interim hearing and had in addition incurred substantial costs in travel between Sydney and Southern Victoria to spend time with the children.
What is clear is that this litigation has had a significant negative financial impact on both parties.

The prima facie merits of the appeal

Having indicated in paragraphs 3 to 6 the matters that Jordan J was required to adjudicate upon and the ultimate conclusion to which the trial Judge came, we summarise some of the specific findings his Honour made in relation to the issues before him.
On the specific allegations of the physical assaults on the wife his Honour was not satisfied that a case was made out against the husband. His Honour came to that conclusion on a careful analysis of the evidence of each of the parties including matters relating to their credit (on which he found on occasion against both of them) and to the provision of other evidence which might prove corroborative of the assertions of each of the parties. His Honour placed some weight upon the fact that the wife had admitted to providing false evidence in the first proceedings before Moore J, and that insofar as there was evidence independent of that given by the parties, it supported the husband more than the wife. His Honour gave detailed reasons in each instance why this was so when analysing the particular assertion and the evidence called to support it. His Honour evinced an understanding of the issues relating to family violence and the reasons why extrinsic evidence may not always be available, as well as the presentation of each of the parties and how, if family violence was present, its effects might be manifested. It is unnecessary for us to set these matters out in detail as they appear from the judgment, in particular paragraphs 121-130.
Having determined in favour of the husband the issue of whether the wife had been the subject of serious family violence, his Honour considered the competing proposals of the parties and the matters under s 60CC of the Family Law Act 1975 (Cth) (“the Act”) which he was required to consider in arriving at a decision as to what was in the best interest of the children. In doing so his Honour, once again, displayed sensitivity to the issues which is exemplified at paragraphs 135-138 of his Honour’s Reasons for Judgment.
His Honour placed weight, in his general observations, on the fact that the Court appointed expert, Dr P, formed the view that the children’s attachment to their father seemed more secure than the attachment to their mother which was viewed as more anxious. His Honour continued at paragraph 142:
In what she described as a finely balanced case, [Dr P] thought that this factor was of sufficient significance to swing the balance in favour of a recommendation by her that the children should live primarily with their father.
In considering the nature of the relationship of the children with each of their parents and any other person, his Honour considered the nature of the children’s relationship with their baby step-sister, the mother’s child B. His Honour noted that if the children were to live with the mother in Southern Victoria that would be the arrangement most likely to positively foster a relationship between the three siblings.
In considering the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and other parent, his Honour noted that each of the parties retained the capacity to fulfil this important role but that the wife demonstrated some uncertainty in this regard.
In considering the likely effect of change in the children’s circumstances his Honour found that as a result of the wife’s life choices, the husband had been the more stable of the two. This included the occupation of the wife of a number of properties, leaving New South Wales, becoming engaged to be married to one man and introducing him to the children as a person of significance in their lives and then after that relationship had failed entering into a new relationship in which the partner had moved into the house with the children until she became pregnant and bore their child, B. That relationship, too, ended abruptly after they had only lived together for a few months. His Honour concluded that placing the children with their mother in Southern Victoria carried with it a great deal of uncertainty and created a prospect that was likely to expose the children to a higher level of instability than would prevail if they lived with their father in Sydney.
His Honour found that as to the practical difficulty and expense of the children spending time with and communicating with the parents that, although the husband would not abandon his relationship with the children, it would remain a significant burden for him if the children remained in Southern Victoria.
His Honour noted that the Independent Children’s Lawyer supported the proposals of the husband and had submitted that they met the interests of the children. His Honour noted that Dr P’s findings, in relation to parenting, were that the relationship between the children and their father was healthier and more secure compared with their mother and that the husband’s proposals for their relocation to Sydney provided the children with a greater degree of certainty and stability.
His Honour concluded by indicating his intention to make the orders which were most likely to provide the children with an opportunity to enjoy greater levels of certainty and stability and concluded that the husband’s proposals offered more of each. In particular his Honour noted that the children had been living in New South Wales for the preceding seven months during which they started school. His Honour was concerned about the certainty around the wife’s plans and noted Dr P’s assessment of the more secure attachment and the children’s relationship with their father. His Honour noted the wife’s acknowledgement that she would reside in New South Wales if necessary indicated that the only orders that were likely to achieve the outcome that the children had both parents in their lives was an order allowing the children to live in New South Wales. His Honour was careful to point out that the wife’s concession in this respect was not a primary consideration as he was otherwise persuaded that the husband’s proposal with the children would be “preferred to the many uncertainties and downsides of a return to [Southern Victoria]”. His Honour noted, at paragraph 185, that:
[i]t is, however, a significant bonus for these children that the wife’s generous concession will best enable these children to avoid the inevitable difficulties associated with interstate parenting and is an arrangement which will enable them to continue to enjoy meaningful relations and substantial time with each of their parents and with their half-siblings.
His Honour was also persuaded that he should make an order for equal shared parental responsibility.
These reasons must now be considered against the grounds raised by the wife. It is convenient to consider the relevance of the transcript together with the merits of each of the grounds as they overlap.

Ground 1: His Honour erred in making findings against the evidence. His Honour erred in law in that he made unfair, unjust and dangerous orders which were not in the best interests of the children.

The wife was unable to articulate specific findings that were made against the evidence or to provide further specificity about this ground. As it presently stands this ground could not succeed.

Ground 2: His Honour erred in failing to have sufficient regard to the history of violence and harassment by the husband.

His Honour’s Reasons for Judgment indicate that he understood that this was a relevant issue in the case, acknowledged it as such and dealt with the conflicting evidence of the parties and other evidence which it was asserted would support their respective positions. There are many paragraphs which indicate his Honour’s careful understanding of the difficult issues and responses of the parties where findings of family violence were being sought. His Honour said, at paragraph 55:
In the circumstances, the conflict in the evidence on issues of family violence appears fundamental. There appears to be little middle ground. There would seem to be little scope for doubt. At face value, either the husband is a man prone to gross domestic violence and abuse of largely defenceless and even pregnant women and an abuser of a young child or, alternatively, he is the victim of both physical abuse and false accusations.
His Honour, at paragraph 70, indicated that he intended to evaluate issues relating to family violence and risk of harm to the children under the following headings:
(a)The nature of the task to be undertaken.
(b)The presentation and testimony of the parties generally.
(c)The specific allegations of abuse by the wife and the circumstantial evidence surrounding those allegations.
(d)The testimony of Ms C and the circumstances surrounding those allegations of abuse and their relevance to these proceedings.
(e)The evidence of mistreatment of K and its relevance to these proceedings.
(f)Conclusions.
His Honour then painstakingly applied himself to that task.
Under the heading “[t]he nature of the task to be undertaken”, at paragraphs 71-76, his Honour said:
71.The allegations of family violence in this case are most serious. The consequences of positive findings of abuse, or unacceptable risk of abuse, are most serious, particularly for the husband and for the children’s relationship with their husband. The implications for the wife, if her concerns are wrongly rejected, are equally serious.
72.The wife makes the allegations and carries the onus of proving them.
73.Section 140 of the Evidence Act prescribes that the standard of proof in relation to such matters is that the case of family violence must be proved beyond reasonable doubt. Section 140(2) provides that, in deciding whether it is so satisfied, the Court may take into account matters such as the subject matter of the proceedings and the gravity of the matters alleged.
74.In this case, the matters alleged are most grave and the subject matter is the welfare of two very young children.
75.In the circumstances, I should neither make such findings lightly, nor should I lightly dismiss the wife’s allegations. I should analyse the evidence carefully and avoid findings based on equivocal evidence.
76.In the main, I am left to determine this matter on the strength of the versions presented by the parties themselves. As is so often the case in such matters, I do not have the benefit of admissions, photographs or medical evidence proving or disproving the respective cases advanced. There are reports to the Police but, in the main, they do little but reinforce the fact that there is a history of unresolved, competing allegations which have, from time to time, been reported to the authorities. Those authorities have apparently determined that there was not a proper basis upon which proceedings could be commenced against either party.
Under the heading “[t]he presentation and testimony of the parties generally” his Honour dealt with the credit of the parties and under the heading “[t]he specific allegations of abuse by the wife and the circumstantial evidence surrounding those allegations” his Honour evaluated the evidence of both of the parties and what was asserted to be corroborative evidence. His Honour then considered evidence regarding mistreatment of K and its relevance and the testimony of Ms C and the circumstances surrounding her allegations and its relevance. In our view, it is plain from the trial Judge’s Reasons for Judgment that his Honour understood the allegations of violence to be central to the case and dealt with the evidence relating to them in a careful and thorough manner. The fact is that in the end his Honour found that the wife had not discharged the onus of proof upon her and that his Honour was not satisfied that the allegations that the wife had raised had occurred. It could not be said that his Honour failed to have sufficient regard to the matters raised by the wife.
The wife asserted that whilst her evidence was contained in affidavits, some of it emerged during cross-examination and the evidence of Ms C, in particular, was provided orally. She asserted that she needed the transcript to show that his Honour did not give sufficient weight to this evidence. She also submitted that the evidence that the experts gave was given in the second part of the hearing and she wished to demonstrate by the transcript that the evidence was not adequately taken into account.
Importantly, the wife did not challenge any particular findings made by his Honour. She conceded that this ground was essentially an argument about weight and given the detail with which his Honour dealt with the evidence of Ms C, Dr N and Dr P it is difficult to see how the transcript could bolster what is an argument about weight and, in our view, not a compelling argument at that. In particular, in relation to the testimony of Ms C, with which his Honour dealt with in a separate section, his Honour found her to be, inter alia, a reliable witness and said, at paragraph 109:
I am, nevertheless, inclined to accept her evidence to the effect that there have been two incidents where she has been subjected to episodes of significant physical abuse at the hands of the husband. It is a little more difficult to gain an accurate sense of the gravity of such abuse. The incidents were not the subject of detailed examination or cross-examination.
His Honour concludes this section by saying, at paragraph 113:
However, those findings, whilst of significance, do not alone enable me to conclude that the husband assaulted the wife in these proceedings as alleged or at all.
These passages indicate that not only did his Honour take into account the evidence of Ms C but that he accepted her as a witness of truth. Thus it is difficult to see merit in this ground or how the transcript could assist the wife’s ground.

Ground 3: His Honour erred in not fully investigating the allegations involving [J] and in not having him give his evidence.

This ground relates to allegations that emerged during the trial that the husband had mistreated his son from another marriage, J. His Honour was critical of the husband for not being candid about the deterioration of his relationship with J who had lived with him and subsequently returned to live with his mother. His Honour had evidence both from J’s mother and Dr N to whom J had made some allegations. His Honour said at paragraph 114:
I have reached the firm conclusion that it would be entirely unsafe to draw any conclusion about the cause or causes of [J’s] current presentation. I have similarly concluded that it would be entirely unfair to draw any adverse inferences against the husband because of that presentation. I was forming that view from early in the process and my opinions were reinforced and confirmed by the evidence of [Dr N] and [Dr P].
His Honour said at paragraphs 115-119:
115.Of course, those findings do not enable the Court to ignore the specific allegations of physical abuse of [J].
116.I accept that [J] has made allegations of physical abuse to both [Dr N] and the wife. Again, however, it is difficult to place much weight upon those assertions. [J] clearly is in the habit of telling his parents, school authorities and [Dr N] lies. He fantasizes and appears to enjoy role-playing the tough guy. It is clear that the husband intervened when [J] and [K] had an encounter, but it is impossible to determine the extent of any mistreatment.
117.In this case, it is simply impossible to determine whether [J’s] deterioration is as a result of having experienced abuse at the hands of his father, or whether his deterioration is as a result of some or all of the other challenges thrown his way and that his allegations against his father are a by-product of that deterioration.
118.What does seem clear on the evidence is that, prior to 2007, there was absolutely no evidence of mistreatment of [J] by his father and, to the contrary, everything indicates that their relationship was entirely positive and the husband’s parenting commendable.
119.I have regard to the evidence of [Dr P] that everything she observed over the long course of her interviews with all three children would be contra-indicative of any violence towards the children.
We think it is clear that his Honour had expert evidence and was dealing with a child who, at that stage, was troubled. We note that the experts appeared to suggest to his Honour that he could be assisted by hearing from J but there is no suggestion that this would necessarily have been advantageous, and was in any event, a matter for his Honour’s discretion. His Honour was alert to the problems referred to in the expert evidence.
In submissions the wife said that the transcript was necessary on this point to show that J did not attend a conference with the expert witness. We could not elicit any other matter for which the transcript would be necessary in relation to this ground. We fail to see how the transcript could assist the wife in support of this ground. There was expert evidence from two experts regarding J. His Honour dealt with the issues which emerged during the trial in relation to J at paragraphs 39 through to 40 inclusive. His Honour noted that there was an explanation for J not attending upon Dr P but received an updated report during the trial from Dr P after she had access to recent material and information from J’s school and had also consulted with Dr N. His Honour noted that Dr P was concerned about these matters and that J might be exhibiting patterns of sociopathic adjustment disorder.
His Honour noted that Dr P had said that if the Court determined that there was substance to the concerns about the allegations of the husband being violent to J, they raise questions about the husband’s own adjustment and violence issues such as might represent a risk of harm to the other children the subject of this application. His Honour noted, at paragraph 45:
These developments in the case posed a significant difficulty, given the initial approach of the parties and the legal representatives to the case generally, and to the issue of past domestic violence, in particular.
His Honour noted that in order to deal with these concerns he was determined that Dr N would be called to provide particulars of the concerns he expressed to Dr P and of the factual basis for those expressed concerns.
Furthermore, his Honour was alive to the fact that the husband may be less frank in informing of J’s circumstance. Finally, however, after considering the evidence his Honour dealt with the evidence under the subheading “[t]he evidence of mistreatment of [J] and its relevance to these proceedings”. His Honour noted the evidence and in particular, at paragraph 115, said “[o]f course, those findings do not enable the Court to ignore the specific allegations of physical abuse of [J].” His Honour further noted, at paragraph 116:
I accept that [J] has made allegations of physical abuse to both [Dr N] and the wife. Again, however, it is difficult to place much weight upon those assertions. [J] clearly is in the habit of telling his parents, school authorities and [Dr N] lies.
His Honour concludes, at paragraph 117:
In this case, it is simply impossible to determine whether [J’s] deterioration is as a result of having experienced abuse at the hands of his father, or whether his deterioration is as a result of some or all of the other challenges thrown his way and that his allegations against his father are a by-product of that deterioration.

His Honour then went on to discuss the previously very good relationship prior to 2007 in which there was no evidence of the mistreatment of J and the husband’s denials.
As far as the relevance of the transcript to this ground is concerned, we cannot see that his Honour could have done any more to have relevant material regarding the allegations in relation to J before him.

Ground 4: His Honour erred by failing to have sufficient regard:
(a) to the impact of relocating of the mother, and accordingly, the 3 children.
(b) to the hardship that would thereby be entailed by the mother and the children.
(c) the impact on [B], [V] and their extended family and the mother’s extended family with the mother and children living in Sydney.
(d) the fact that the husband will not have available to him the jointly owned home given the Orders for property settlement, and the resulting impact of the children settling into new homes.

His Honour noted the previous proceedings under the heading “[b]ackground” and in particular the existing arrangements in which each of the parties and the children were living. In particular, since the interim orders were made in February 2009 the wife availed herself of the opportunity and had been spending alternate weeks with the children and residing in Sydney since that time. However, it is difficult, in our view, to be critical of his Honour for not dealing with the matter raised by the wife under this ground when the mother made the concession that in the event the Court should determine that the children should live with the husband in Sydney she would move to Sydney to be with the children.
His Honour did not require the mother to relocate to Sydney or to live in Sydney. He noted that she was prepared to do so if the Court’s decision was that the children should live in Sydney with the husband. Given that his Honour did not require she do so, we do not consider that it could fairly be said that his Honour failed to pay sufficient regard to these matters. In addition his Honour was aware that the mother had been living in Sydney since February with B and was entitled to take into account, given the evidence that the mother would continue to do so, that whilst it was not her choice it was one which she could nevertheless continue.
In relation to the husband’s home, his Honour does not deal with this in his judgment. Whether it was raised we are not able to say. We would say, however, his Honour was more concerned about the stability of the children’s household, the fact that they had commenced school, their secure attachment with the husband and his less chaotic lifestyle than with the issue of the precise home in which they would live. Finally on this point, we suggest that in an overall consideration of this case this would be a fairly minor matter and not one upon which the appeal would be likely to turn.
The wife submitted to us that the transcript was important because she had given oral evidence about the impact of the hardship to her if she were to live in Sydney in order to see the children on a week about arrangement. She conceded in her submissions that this was really a matter of weight and that she was submitting that his Honour did not give sufficient weight to these matters. We do not think that the transcript could assist the wife in relation to this argument and given the concession to which we have referred and the principles in relation to discretionary judgments we think that the wife will have difficulty in succeeding on this ground.
In her submissions the wife further conceded that there was no evidence before the trial Judge as to whether or not the father would have available to him the jointly-owned home.

Ground 5:His Honour erred in ordering the children’s residence be in Sydney by failing to have sufficient regard to the evidence that:
(a) The appellant had re-established herself and the 3 children in [Southern Victoria] since 2004 for some 5 years.
(b) The appellant had an established network of support from her family and friends in [Southern Victoria].
(c) The children were well established in [Southern Victoria] with friends and family, where [T] and [B] were born.
(d) The stability the mother and children enjoyed in [Southern Victoria] and would continue to have living with the appellant’s mother in familiar surrounds.
(e) If the mother does not relocate with the 3 children, the children would be deprived of a relationship with their baby sister [B] and their mother, family and friends in [Southern Victoria].

The wife also conceded that this was a ground which related to weight. She asserted that the transcript would assist her because in her cross-examination she had emphasised the importance of her networks in Southern Victoria.
We think it clear from the judgment that his Honour had regard to all of these matters which he detailed under the subheading “[b]ackground”. In the end, however, his Honour placed greater weight, as we indicated, upon the fact that children had been living with the husband in Sydney pursuant to interim orders which have been in place since February 2009, that they had commenced school in Sydney, their more secure attachment to the husband, the greater stability he could provide and the mother’s decision that she would live in Sydney if the Court determined that the children should live there. The considerable detail in which his Honour went through the background makes it abundantly clear that his Honour gave weight to all of the matters raised by the wife but that the matters which we have already alluded to when weighed against these factors resulted in the conclusion that the children’s best interests were served by them remaining in Sydney with the husband. In making his comments, we are cognisant of the discretionary nature of this decision and the well known difficulties that the wife would have in overturning a discretionary decision where the issues relate to matters of weight as the matters in Grounds 4 and 5 appear to do (See House v R (1936) 55 CLR 499).

Ground 6: His Honour erred in making findings against the evidence.

The wife was unable to articulate any findings that were against the evidence. Effectively her submission on this point was that if she had the transcript she may find errors or at least assert errors which she thought might assist her.

Ground 7: His Honour erred in failing to use expert evidence.

From submissions from the wife it seems that this was also a ground about weight. The wife conceded that his Honour had expert evidence from Dr P and Dr N but asserted that they expanded upon that in oral evidence and that his Honour did not give it sufficient weight. Given the extensive consideration and the Reasons for Judgment by his Honour of the two experts it is hard to see how the transcript would assist the wife in relation to this ground which must be considered unlikely to succeed.

Ground 8: His Honour erred in failing to admit into evidence parts and/or the whole of a number of affidavits of the appellant’s witness, which contributed, to the failure of his Honour to make appropriate findings as to the parenting qualities of the husband.

It was agreed that at various times during the trial, particularly the second half of the proceedings, the wife had sought to rely on affidavits which had been rejected by the trial Judge either in whole or in part. Neither of the parties or the Independent Children’s Lawyer were able to identify from their own notes with precision which documents had been excluded. We were provided with a draft appeal index but that did not provide the necessary clarity to ascertain exactly what documents were before his Honour and those which were not. We were informed that, at various times, the wife had sought to rely on documents only to later withdraw that reliance. The parties and the Independent Children’s Lawyer, asserted that the only way of determining this was to obtain the entire transcript.
His Honour identified in broad terms the material that was the subject of his rulings. This was set out in paragraphs 52 and 53 of the Reasons for Judgment where his Honour identified 13 affidavits filed by the wife and a concession that much of the material filed by her during the adjournment period went beyond the issue on which she had been given leave to reopen. His Honour said, at paragraph 53:
As a consequence, counsel for the wife did not rely upon much of the affidavit material filed. There was debate about the remainder and my rulings left most of the wife’s supplementary testimony intact and very little of the affidavits of the third parties were admitted on this issue.
Whilst it would seem that obtaining the whole transcript for each of the 14 days would assist the parties to identify with particularity those affidavits which were clearly not before his Honour, in our view, the cost of obtaining the transcript is not proportionate to the benefit which would accrue to the wife. It is clear from paragraphs 52 and 53 of the Reasons for Judgment that most of the 13 affidavits that the wife sought to file during the adjournment period were not relied on or not allowed.
The Independent Children’s Lawyer explained to us that the earlier affidavit material was put in by way of an exhibit which would form part of the appeal book and as we pointed out to the parties it is open to them, if there is a dispute, for two Appeal Books to be prepared. The first containing material which was agreed as having been before the trial Judge and the second containing the contentious material which could be the subject of further submissions to the court finally hearing the appeal. That court would also have discretion to order part of the transcript if it determined it to be in the interests of justice.

Ground 9: His Honour erred by not properly assessing the 2 proposals of the parties and further erred by considering the mother living in Sydney as a proposal.

We cannot see that there is merit in this ground. His Honour carefully set out the competing proposals of the parties from which it was quite clear that the wife’s primary position was that she wanted to live with the three children in Southern Victoria and the husband wished to reside in Sydney with the two children of the relationship. His Honour at paragraphs 131-133 dealt specifically with the competing proposals of the parties and the wife’s concession. In fact his Honour was very much aware that this was not the wife’s primary proposal and his understanding that he should treat it with some caution is demonstrated by what his Honour said, at paragraph 132:
Counsel for the wife submitted that it would be unfair to the wife to take that admission into account and to view it as an easy option at the expense of a proper consideration of the wife’s primary proposal, which is to reside with her children in [Southern Victoria]. Counsel for the husband argued that I simply could not ignore the evidence and consider the competing proposals of the parties in isolation of the evidence of the parties about the consequences for them and their children of the various options available to the Court.
His Honour in considering the submissions of counsel, at paragraph 133, said:
The wife is clearly entitled to a proper consideration of her primary proposal. If the children’s best interests are served by residing with their mother in [Southern Victoria], then that should be the decision of the Court. On the other hand, it is necessary to have regard to the different consequences for the children should they reside in Victoria or New South Wales. It is an important aspect of the evidence that the wife informs the Court that she would immediately move to New South Wales to remain available to her children, should the Court not be persuaded to allow them to return with her to [Southern Victoria]. I should add in this context that, in my view, the wife is entitled to the advantage of a finding that her willingness to sacrifice her own preferences for the benefit of her children represents a stark piece of evidence very clearly illustrating the depth of her commitment to her children. At the same time, I am bound by the evidence to proceed on the basis that an order enabling the children to move to [Southern Victoria] with their mother will result in the children’s time with the husband being limited to regular school holiday contact and intermittent weekend visits, whereas an order leaving the children in Sydney would enable them to share their time equally between their parents.
We think it is clear that his Honour approached this with a clear understanding of those proposals and in addition the effect of the wife’s concession.
The wife asserted that the transcript was necessary for her to argue this ground and that the argument related to her evidence that her concession was only made on the basis that she told the Court that she could simply not live without her children. We discern the argument to be that his Honour thus failed to consider her proposals with sufficient cogency. Again, we doubt that the transcript would be of much assistance to the wife in relation to this ground. We have pointed out that his Honour was aware of the proposals of each of the parties and the impact of the wife not being able to remain in Southern Victoria if his Honour decided the children should remain in Sydney with the husband. His Honour dealt with this in paragraphs 148 and 149 of the Reasons for Judgment where his Honour noted that living on a largely full-time basis in Southern Victoria with their half-sister is likely to foster a positive relationship with the children. In addition his Honour found that the children enjoy a very close relationship with the maternal grandmother and he accepted that the children enjoy the benefits of close family networking in Southern Victoria. His Honour further acknowledged, at paragraph 150:
I must conclude that the greater loss for the children would be any arrangement which diminishes the opportunity of the children to spend time with extended family in [Southern Victoria].
Nevertheless, as his Honour pointed out in paragraph 133 the wife’s concession that she would live in Sydney if the trial Judge found that the children should remain there and the manner in which he carefully evaluated that concession must mitigate against a successful prosecution of this ground. Nor can we see how the transcript would be likely to assist the wife.

Ground 10: His Honour erred in ruling that the children’s residence be in Sydney having no regard to the financial circumstances of the appellant.

We have already commented on this ground which arises in an earlier ground. Without seeing the Appeal Books and all of the filed material we cannot be sure what financial information was before his Honour. However, his Honour was entitled to rely upon the evidence that the wife had in the past resided in Sydney and was prepared to continue to do so and that he did not require the wife as part of those orders to take that step.
The complaint in relation to this ground as articulated by the wife seems to be that there was no evidence, or that there was limited evidence before his Honour, regarding the financial situation of the parties. It seems that as the previous proceedings had concluded their financial matters, neither party put forward fresh information in relation to their financial position. However, it is clear that his Honour, in broad terms, understood the financial position of each of the parties and was likely to have been aware of the orders made in their property settlement proceedings. At paragraph 161, the trial Judge notes that the husband had continued to reside in the former matrimonial home although that arrangement might end because of his financial circumstances and noted that the husband continued to pursue his career. Insofar as the wife is concerned his Honour was aware that she had been living in Sydney and was prepared to continue to do so if the decision of the trial Judge was that the children were to remain in Sydney. His Honour was also aware that the wife has a young child and as a result was not in paid employment. There may have been further evidence about the financial position available in the affidavit material from the previous hearing but if, as the wife contends, the parties themselves did not put further evidence before the trial Judge then we fail to see how the transcript could assist her in advancing this ground.

Ground 11:His Honour erred in making orders compelling the mother to relocate with her infant child.

This ground can easily be disposed of. His Honour did not make any orders which compelled the wife to relocate. His Honour noted the concession that the wife was prepared to do so but the orders do not provide that she must. It is apparent that no transcript could assist with the ground.

Ground 12: His Honour erred in not assessing or exploring the husband’s ability to reside or spend time and have shared responsibility with the children living in [Southern Victoria].

We think, again, that it is apparent the trial Judge considered the husband’s ability to live in Southern Victoria. We think there were clearly two aspects to this. The first is that when the children were living in Victoria with the wife the husband travelled from Sydney to Southern Victoria every weekend to spend time with the children and noted that the husband had, at paragraph 137:
…demonstrated his exceptional commitment to his children by his willingness to endure the extraordinary hardships and challenges associated with sustaining his relationship with his children between States for the earlier years of their lives, which regime included weekly interstate journeys for years, often for only a few hours time with his children.
This was largely brought about because the husband was in full-time paid employment and therefore is constrained to seeing the children during weekends or school holidays. Whereas the wife was not in paid employment and a shared arrangement of time between the children and both parents was available if the children remained in Sydney. Secondly, his Honour noted that in oral evidence the husband explained “with a great deal of emotion and conviction that he did not believe that he any longer had the physical, emotional and financial capacity to sustain his relationship with the children if they lived interstate”. His Honour noted that the husband was not challenged in relation to that assertion and although his Honour noted that, in his view, the husband would not abandon his relationship with the children, his Honour accepted that it would become a significant burden for him and took that into account. Thus it was made abundantly clear that his Honour did consider the husband’s ability to spend time with the children in Southern Victoria.
The wife suggests that this matter was explored by her counsel and that there were matters which arose in cross-examination which the trial Judge overlooked. If so, such matters could only go to weight and the transcript would be unlikely to assist.

Ground 13: His Honour erred in not exploring the husband’s financial situation and his failure to sufficiently provide for the children

This ground, as articulated, is similar to ground 10 in that the wife says that the trial Judge had limited evidence about the financial circumstances of each of the parties. As we have already noted, if no more detailed evidence was before the trial Judge the transcript cannot be of any assistance. His Honour was entitled to infer in the absence of any other evidence, that the parties would, albeit with some hardship, be able to make that arrangement work.

The proportionality of the cost of the transcript

It is impossible to say that there may not be parts of the transcript to which the wife could direct the Court in support of her appeal. However, we have not been satisfied that they are of such a compelling nature that they would be likely to affect the outcome weighed against the cost of provision of the transcript and any likely benefit of it. In any event, as we have previously noted, the Full Court hearing the matter retains the discretion to form a different view.

Other matters of relevance

The history of this matter is also relevant to our decision.
(a) As we have already pointed out the proceedings commenced in September 2004 and on 16 February 2007 the Reasons for Judgment were delivered by Moore J after a hearing over 13 days. The effect of those orders were to provide for the children’s residence to be established in Sydney, the children to spend specified times between the husband and wife graduating to a week-about shared parenting arrangement.
(b) Moore J’s orders were the subject of an appeal. In the end, although there were 25 separate issues raised, only one ground was pursued before the Full Court, namely, that her Honour failed to consider the ‘reasonable practicability’ of ordering that the children live in Sydney, effectively requiring the wife to return to Sydney to share their care.
(c) Largely because there was no challenge to the findings of fact by Moore J, the matter was remitted to her Honour to consider the reasonable practicability of the arrangement.
(d) An application was made by the wife for Moore J to disqualify herself on the basis of bias due to the credit findings her Honour had made against the wife in the initial hearing and Moore J did so.
(e) An issue then arose as to whether or not, in view of Moore J recusing herself, there would have to be a complete rehearing before another judge or whether the other judge could hear the limited matter remitted. This required a case stated to the Full Court which held that there would have to be a complete rehearing before another judge.
(f) There was an interim hearing relating to the children’s schooling and finally the hearing before Jordan J which continued over 14 days.
(g) The effect of his Honour’s orders was not dissimilar to the first decision, namely, that the children should reside in Sydney with both parents on a week about arrangement, if the wife was prepared to move to Sydney. Otherwise the children would live in Sydney with the husband.
The husband, in his affidavit in relation to this application, details other applications to the Court but it is sufficient for our purpose to note the significant time that the Court has allotted to this matter. Without wishing to suggest the matters raised by the parties, in particular the wife, in each of the cases were not matters worthy of consideration and adjudication by the Court, the result of both proceedings has been an equal shared living arrangement, if the wife is prepared to be in Sydney. Relevantly, Jordan J concluded at paragraph 184:
… I am dealing with two basically decent people, who have struggled with the challenges of co-parenting whilst locked into litigation. That litigation is, hopefully, coming to an end. I am hopeful that that new environment will eliminate scope for strategising and that the parties will have no alternative but to move forward. I have determined that they are each very committed, very capable parents.
The wife is entitled to prosecute her appeal with or without the transcript. The Court however, has discretion to consider whether the finite public purse should again be extended to these parties in the form of the cost of the transcript. Given the litigation to date and the similar results after two complete hearings we do not think that there are exceptional circumstances to justify further expenditure of transcript or that the interests of justice could be said to demand such expenditure by the Court.
We also note in the exercise of this discretion the husband’s unchallenged evidence that the wife has cost orders against her in the sum of about $100,000 which have not been met.
Finally, and for the record we note that while the wife had indicated that she had only received a grant of legal aid some five days before the hearing before Jordan J, carrying with it the inference that her legal representation was somehow underprepared. The Independent Children’s Lawyer informed us that although legal aid was only granted five days before the hearing it was granted to the wife’s existing legal representatives and there was no suggestion that she did not have continuity of representation leading up to and in preparation of the hearing.
For these reasons, in our view, this application should not succeed and will be dismissed.
Our decision in relation to the provision of transcript as we have indicated does not prevent the wife from prosecuting her appeal nor does it bind a differently constituted Full Court from coming to a different view during the course of the appeal if there were other matters properly brought to its attention.

Costs

The father informed us that he had incurred certain costs in obtaining legal advice leading up to the appeal and with preparation of the Appeal Book index. This is a discrete application and he did not identify specific costs which related to his affidavit or his appearance on this matter.
Mr Sperling, for the Independent Children’s Lawyer advised us that the costs sought by Legal Aid were $1200.
The wife indicated that in the event she was unsuccessful she would not be able to pay the costs. In particular she indicated that she had already had paid approximately $1.2 million in legal fees.
Costs under the Act are governed by s 117. Insofar as this application is concerned the relevant provisions are sub-ss 117(1), (2) and (2A).
Section 117(2A) of the Act sets out matters the Court should take into account in determining whether there should be a departure from the provisions of
s 117(1), that each party pay their own costs of and incidental to the proceedings. In particular s 117(2A)(e) says:
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
Whilst this application has been unsuccessful, in the circumstances, particularly as the husband has not been represented, we do not think a departure from the position that each party bear their own costs is justified and as a result, we do not propose to make an order for costs.
Our decision in relation to this application does not affect the right of the Independent Children’s Lawyer and the husband to seek costs of the appeal if it is either abandoned or unsuccessful. Our decision in relation to costs relates only to the wife’s application for the provision of the transcript filed on

23 December 2009.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 5 November 2010.

Senior Legal Associate:

Date: 4 November 2010

*Paragraph 84 has been amended by revising the reference to the outstanding costs order. Paragraph 94 has been amended by inserting the word “not” after the word “does” and before the word “affect”.