Appellant Opposes Adverse Credit Findings
Bergeron & Bergeron [2022] FedCFamC1A 140 (7 September 2022)
The primary judge made adverse credit findings against the mother. Those matters arose from cross-examination. In determining whether the credit findings could be challenged, the court considered how the transcript of the trial is not available.
Facts:
The primary judge made orders concerning the parenting arrangements for four of the parties’ children. The hearing was conducted over four tranches between August 2020 and March 2021. His Honour delivered reasons for judgment and made orders on 26 May 2022.
His Honour made a number of adverse credit findings against the mother (at [1043] and referring back to findings at [491]–[495] and [527]). These matters arose from the cross-examination of the mother which took place on 26 August 2020. The parties and the Independent Children’s Lawyer jointly ask the Court to allow the appeal, to remit the matter for rehearing, and to make costs orders under the Federal Proceedings (Costs) Act 1981 (Cth). Due to the fault of the courts transcript provider, no sound recording exists of 26 August 2020 and no transcript can be prepared.
Issue:
Whether or not the appeal should be granted.
Applicable law:
Bhatnagar & Riju [2018] FamCAFC 144 - provides that the Court will only allow the appeal, remit the matter for rehearing and make costs orders where it is satisfied that the decision the subject of the appeal is affected by appealable error.
Expectation Pty Ltd v PRD Realty Pty Ltd and Another (2004) 140 FCR 17; [2004] FCAFC 189 - provides that the challenge to the factual basis for the adverse findings made by the primary judge requires more force because of the 19 month gap between the evidence being given and the delivery of reasons.
Maidment & Insley [2022] FedCFamC1A 48 - where the Full Court held that the availability of the record of the hearing is implicitly to the exercise of the court’s appellate jurisdiction.
Analysis:
It follows from the lack of sound recording that the mother is unable to challenge the factual basis for the adverse findings made by the primary judge. Challenges to the use to which the oral evidence was applied, and how or whether regard was had to it, the result in this instance must be to set aside the judgment and remit it for further hearing. Despite the mother’s desire that this Court re-exercise the discretion, the absence of the record at first instance means that this simply cannot occur.
Conclusion:
As the relevant transcript is unavailable, the appeal must be allowed. The matter insofar as it relates to parenting orders be remitted for rehearing by a judge other than the primary judge. The children, W born in 2010, X born on ... 2013, Y born on ... 2014, and Z born on ... 2017, live with their mother. The children Y and Z shall spend time with their father in a fortnightly pattern.
