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Appellant Opposes Final Parenting Orders

Maidment & Insley [2022] FedCFamC1A 48 (7 April 2022)

Final parenting orders were made by the then Federal Circuit Court of Australia which were appealed by the appellant.  The appellant lodged an appeal relating to grounds directed to evidence at first instance.  The Court, in adjudicating this dispute, considered the loss of recording of proceedings.

Facts:

On 22 June 2021, final parenting orders were made by the then Federal Circuit Court of Australia which were appealed by the appellant.  On 4 February 2022, this Court pronounced orders which allowed the appeal, but reserved the reasons for doing so.  By her Second Amended Notice of Appeal, the appellant set out 33 grounds challenging the orders and judgment of the Federal Circuit Court, with such challenges being amplified in her Summary of Argument.   The appeal grounds contained a number of significant challenges that were based upon the oral evidence given at the trial. 

Because of COVID-19, the hearing before the primary judge was not conducted face to face, but rather, the parties appeared electronically by way of Microsoft Teams.  While a recording was taken and retained of the proceedings, including the oral evidence given, submissions made, and exchanges between the bench and the litigants, and while limited transcript being restricted to evidence of the family consultant was shortly thereafter taken out, the balance of the record of the proceedings has thereafter been irretrievably lost.  The appeal grounds that relied upon that lost oral evidence ultimately compel that the appeal should be allowed and the proceedings be remitted for rehearing.  This appeal is concerned, to a substantial degree, with challenges to the use to which the oral evidence was applied, and how or whether regard was had to it.

Issue:

Whether or not the appeal should be allowed.

Applicable law:

Federal Circuit and Family Court of Australia Act 2021 (Cth) 36 - empowers the appellate Court, where error is established, to make the appropriate orders, having regard to all of the evidence before the appeal Court (including what was before the Court at first instance).
 
Aluminium Louvres & Ceilings Pty Ltd v Zheng (2006) 4 DDCR 358; [2006] NSWCA 34 - Bryson JA (with whom Handley JA and Bell J agreed) at [32] stated that the absence of the transcript of proceedings before a Conciliation Commission Arbitrator was a “serious shortcoming, because it greatly impedes the right of appeal and the due exercise of powers” of the appellate body.
 
Carlson v King (1947) 64 WN (NSW) 65 - provides that there is a duty imposed upon a court to “make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal”. 
 
DJL v Central Authority (2000) 201 CLR 226[2000] HCA 17 - provides that the Family Court is “unable to draw upon the well of undefined powers” which were available to those courts as part of their “inherent jurisdiction”. 
 
Fox v Percy (2003) 214 CLR 118[2003] HCA 22 - identified the manner of exercise of the jurisdiction as an intermediate appeal Court conducting an appeal by rehearing.
 
Kuriakin & Kuriakin [2011] FamCAFC 199 - provides that although the Court does not need to express an opinion about it, were it necessary to do so the absence of a transcript, by reference to which the correctness or otherwise of the decision of the learned Federal Magistrate could be tested, would be a matter which would weigh heavily in this Court’s approach to determining the appeal as an intermediate appeal court conducting appeals by way of rehearing, as this Court undoubtedly does. 
 
Pisani and Pisani (2008) FLC 93-362[2008] FamCAFC 25 - provides that 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.
 
Tame v New South Wales (2002) 211 CLR 317[2002] HCA 35 - said that where there is “an appellant's brief containing seven to ten points or more, a presumption arises that there is no merit to any of them”.
 
Teelow v Commissioner of Police [2009] 2 Qd R 489[2009] QCA 84 - reasoned at [26]–[28] that the absence of the transcript may simply mean that error is unable to be demonstrated, leading to the dismissal of the appeal. 

Analysis:

An accurate recording of proceedings has become a fundamental and invariable part of the Court’s processes and, ordinarily, a transcript of that recording will be produced to the Court on appeal.  While appellants may, at times, be relieved of the obligation to provide a transcript, the consequence of being granted such relief is typically that they will be precluded from advancing challenges which require reference to the oral evidence, submissions or exchanges.  Apart from that limited class of cases, the essential nature of the record at first instance is a consequence of the nature of the jurisdiction of this Court on appeal.  Depriving this Court of the capacity to assess the evidence, where it is necessary to do so to address the issues on appeal, strikes at the function of the Court, given the essential nature of the record at first instance in discharging the functions set out in ss 35 and 36 of the FCFCOA Act.

Where the contention is as to errors based upon the evidence, and where it cannot be anticipated that, in the absence of a recording of the proceedings, an adequate account of the oral evidence could be given.  In this case, it is not a deficiency that can be remedied by recourse to the judge’s, or counsels’, or the solicitors’ notes of the proceedings.

Conclusion:

The Court allowed the appeal.  The orders of the Federal Circuit Court of Australia made on 22 June 2021 are set aside on and as from the date upon which further orders are made by the Federal Circuit and Family Court of Australia (Division 2).  The matter is remitted for rehearing before a Federal Circuit and Family Court of Australia (Division 2) judge other than the primary judge.  The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth).  The Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth).  The Court grants to the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth).  The appellant’s Application in an Appeal filed 24 January 2022 be dismissed. 

 

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