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Sampson & Hartnett (Provision of Transcript)

Sampson & Hartnett (Provision of Transcript)

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FamCAFC 220
Decision Date

CaseChat Overview and Summary

The wife, Ms Sampson, appeals against the decision of Jordan J to award residence of the two children to the husband, Mr Hartnett. The wife's application for the Court to provide the transcript of the hearing before Jordan J, at its expense, was dismissed. The Full Court held that the interests of justice did not require the provision of the transcript at the Court's expense. The wife's grounds of appeal, while numerous, did not reveal any compelling reasons to believe that the appeal was likely to succeed. The Court noted the financial circumstances of the wife which were relevant to the exercise of its discretion. The wife had been living in Sydney for some time and was prepared to continue to do so. The costs of the transcript were significant and the Court did not consider it would be justified to incur that expense. The Full Court did not make an order for costs.

Orders