Sullivan and Tyler (No 3) - [2015] FamCAFC 96

FAMILY COURT OF AUSTRALIA

SULLIVAN & TYLER (NO. 3)

[2015] FamCAFC 96

FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant sought leave to file a 22 page summary of argument – Where leave was not opposed – leave granted – Where the applicant also sought leave to rely on a 158 page document entitled “Annexures to Summary of Argument” – Where allowing the applicant to rely on that document would be onerous and oppressive for the first and second respondents – leave not granted.

Family Law Rules 2004 (Cth)

APPLICANT:

Ms Sullivan

FIRST RESPONDENT:

SECOND RESPONDENT:

Mr Tyler

Independent Children’s Lawyer

FILE NUMBER:

SYC

889

2008

APPEAL NUMBER:

2014

DATE DELIVERED:

30 April 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Finn and Strickland JJ

HEARING DATE:

30 April 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

26 March 2014

LOWER COURT MNC:

[2014] FamCA 178

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE FIRST
RESPONDENT:

Mr Holmes

SOLICITOR FOR THE FIRST RESPONDENT:	KD Holmes Solicitors
COUNSEL FOR THE SECOND RESPONDENT:	Mr Christaki
SOLICITOR FOR THE SECOND RESPONDENT:	Legal Aid NSW

Orders

On the oral application that the applicant made this day, the applicant have leave to file the amended notice of appeal dated 13 March 2015, provided the said amended notice is filed by the close of business on 1 May 2015.
In relation to the amended application in an appeal filed 9 April 2015 seeking to file a summary of argument of 22 pages and further annexures, the applicant have leave to file her summary of argument, limited to 22 pages, within 7 days of the date of these orders, without annexures.
The applicant have liberty to produce a document in table form

cross-referencing paragraphs in the summary of argument with transcript, exhibits and the documents in the appeal books.
The application in an appeal filed 9 April 2015 seeking digital transcript of proceedings before the Full Court on 24 June 2014 and 5 February 2015 be dismissed.
The costs of these applications are reserved as costs in the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sullivan & Tyler (No. 3) has been approved by the Chief Justice 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: EA 47 of 2014
File Number: SYC 889 of 2008

Ms Sullivan

Applicant

And

Mr Tyler

First Respondent

And

Independent Children’s Lawyer

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

BRYANT CJ

We have before us today two applications filed by the appellant mother, both filed on 9 April 2015 and both applications in an appeal. One of the applications in an appeal seeks the production of digital transcript of the proceedings, which were procedural hearings before the Full Court on 24 June 2014 and 5 February 2015. That order was sought in support of the mother’s contention that she was entitled to file a summary of argument of 20 pages rather than the 10 pages that the Family Law Rules 2004 (Cth) (“the Rules”) require. It is unnecessary for us to make any order as sought because neither the respondent nor the independent children’s lawyer (“the ICL”) oppose the summary of argument of 22 pages and we will make an order permitting that to be filed.
The second application seeks leave to file the summary of argument of 22 pages to which I have referred and also a document which is entitled “Annexures to Summary of Argument”, of 158 pages of annexed material pages. It is the admission or reliance on that document which is the contentious matter before us this morning and the filing of that document is opposed.
The third matter before us, which was not the subject of an application, is that the mother now seeks to file an amended notice of appeal in which the grounds of appeal are significantly reduced from, I think, 20 grounds to 8 grounds.
Upon the invitation of the court, the mother made an oral application for leave to file the amended notice of appeal. That was opposed by the respondent but not by the ICL. In fairness to the respondent, the main opposition to that comes from the fact that the respondent had already filed a summary of argument in response to the original notice of appeal, although I pause to note that he was not required to do that until the mother’s summary of argument had been filed.
First dealing with the oral application to file the amended notice of appeal, in my view, the filing of the amended notice should be allowed. The grounds are significantly reduced and, in the end, it will improve the argument and the capacity to understand the nature of the appeal. In the end, in my view, that is to the benefit of all concerned, as well as to the court.
As I have already indicated, there was no objection to the mother filing a summary of argument of 22 pages and, to that extent, her application in appeal was successful.
The contentious point, however, of this procedural hearing is the document of 158 pages entitled “Annexures to Summary of Argument”. That document can be characterised in two ways which were really teased out during discussion between the bench and the appellant mother. That is either as, in fact, part of the summary of argument or, alternatively, as a written statement mostly in lieu of oral argument when the appeal is heard. There are, in my view, however, problems with both. The problem with the first is that it is much too long for a summary of argument. The Rules normally allow 10 pages. On this occasion, a summary of argument of 22 pages has been allowed.
To extend that to what would be effectively 180 pages would create, in my view, unfairness to the respondent and the ICL who would have to respond and, given the nature of the material in the document, in my view, it would be onerous and oppressive were they required to do so. I would therefore not be prepared to allow the document to be used in that way.
The second characterisation is really that it is the appellant’s oral argument reduced to writing, which the court should have in advance of the hearing. The argument on behalf of the mother in that sense, really, is that it summarises what she would want to say. It provides the other parties and the court with forewarning of what the arguments will be and, for a litigant in person, it is of considerable assistance to her to be able to put before the court her argument in writing, she not having the facility that barristers have in the oral traditions of appeals.
The problem, however, with the document is not simply its magnitude but the manner of its expression and some of the contents that are referred to. The mother conceded that, in fact, there was material that was referred to which went beyond the evidence that was before the trial judge. In fairness to the mother, she said that she would remove those passages if we allowed her to rely upon it. Whilst acknowledging the notice the document itself provides of what the arguments would be, its acceptance nevertheless creates a significant disadvantage to the respondent and the ICL.
In addition to the material which the mother conceded, although she said there was not a great deal of it which went beyond the material before the trial judge, it also contains what I would refer to as submissions which, if presented orally, are unlikely to be accepted and might be able to be challenged and discussed. That would not be necessarily the case if the document were admitted in its entirety now. The admission of the document might also give the mother the impression that her submissions contained within the document are appropriate and accepted. That would likely cause potential injustice to her if she was of that belief, as well as to the respondent and the ICL who would be put to the trouble of going through the document in detail.
It is my view, having considered these matters, the best management of this appeal is for the mother to address her summary of argument with oral submissions in the usual way and to allow the court dealing with the matter to deal with matters and submissions that are not appropriate for whatever reason when the time comes. As we pointed out in discussion with the mother, she can, no doubt, use the document as her own aid to the submissions that she is making orally to the court on the appeal. We would, however, be prepared to allow the mother liberty to produce a document in table form, cross-referencing paragraphs in her summary of argument with transcript pages, exhibits and documents in the appeal books.

Finn j:

I agree with the orders proposed by the Chief Justice and with the reasons she has given.

Strickland j:

I too agree with the orders proposed by the Chief Justice and the reasons her Honour has provided.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn and Strickland JJ) delivered on 30 April 2015.

Associate:

Date: 21 May 2015