Case Note: Knox & Knox [2017] FamCAFC 93 (18 May 2017)

 

Summary

This matter involved an appeal to the Full Court of the Family Court.  The father had applied to the Federal Circuit Court for a copy of the transcript of completed parenting proceedings.  His application had been refused and the father appealed that determination.

The Full Court of the Family Court considered that they did not have jurisdiction to determine the appeal as the orders the subject of appeal were not made in the “exercise of original jurisdiction” under the Family Law Act 1975 (Cth).

Consequently, the appeal was dismissed.

However, Order 2 permitted the Appeals registrar to seek, pursuant to rule 2.08 of the Federal Circuit Court Rules, a copy of the transcript which forms part of the Court file (for the purposes of the Appeal).

 

Legislation Cited

Family Law Act 1975 (Cth)

Federal Circuit Court of Australia Act 1999 (Cth)

Family Law Rules 2004 (Cth)

Federal Circuit Court Rules 2001 (Cth)

 

Hearing date: 18 May 2017

Judgement of: Thackray, Strickland and Kent JJ

Date of Judgment: 18 May 2017

Place of Judgment: Melbourne

Lower Court Judgment Date: 20 February 2017

 

Orders

1. That the appeal be dismissed.
2. In the parenting appeal, the Appeals Registrar be directed to seek, pursuant to r 2.08 (relating to obtaining and copying of the court file) of the Federal Circuit Court Rules, permission to obtain a copy of the trial transcript the subject of the substantive appeal from the parenting orders made on 6 April 2016 and to publish these reasons for judgment to the Federal Circuit Court in support.

 

 

Reasons for Judgment.

KENT J

1. Justice Kent referred to the appellate jurisdiction of Court relevant to the appeal as expressed in the following terms of s 94AAA(1)(a) of the Family Law Act 1975 (Cth)(“the Act”):

94AAA(1) An appeal lies to the Family Court from:

(a) A decree of the Federal Circuit Court of Australia exercising original jurisdiction under this Act;

…

2. An appeal lies from a decree of the Federal Circuit Court of Australia made in the exercise of the original jurisdiction under the Act. Conversely, the jurisdiction of Family Court to entertain an appeal does not extend to a decree or decision made otherwise than in the exercise of original jurisdiction under the Act.
3. Justice Kent did not consider that the orders made in the Federal Circuit Court on 20 February 2017, the subject of this appeal, could be characterised as orders made in the exercise of original jurisdiction under the Act. It follows that the Family Court does not have jurisdiction to entertain an appeal from those orders and the appeal must therefore be dismissed.
4. There had been a trial in the Federal Circuit Court which took place over six days on 28 to 30 September 2015, 1 October and 17 and 18 December 2015.
5. On 6 April 2016 Judge Jones made final parenting orders in respect of the three children providing for the children to live with their mother and spend time with their father.
6. The father exercised his right to appeal those orders by filing a Notice of Appeal on 3 May 2016 and an Amended Notice of Appeal filed on 6 July 2016 (“the parenting appeal”). The parenting appeal to this Court is pending.
7. There was no disagreement that “the parenting appeal” fell in the jurisdiction conferred by s 69H(4) of the Act.
8. Consequent upon the father instigating the parenting appeal, the father was to file appeal books including the transcript of the trial, by 25 August 2016.
9. Justice Kent said, “Given the finite resources of the Federal Circuit Court, and the Family Court, a transcript is not obtained in most, or even many, trials of parenting proceedings heard in the Federal Circuit Court or in the trial division of this Court. However, in this particular case Judge Jones ordered from the relevant service provider Auscript, funded at public expense, a transcript of the trial. Her Honour’s reasons for judgment delivered with respect to the parenting orders are replete with numerous quotations from, and references to, the trial transcript. Whilst her Honour obtained that transcript, no order or direction was made to release it to the parties to the proceedings.”
10. The father made attempts to obtain from the Federal Circuit Court administratively that transcript, knowing as he did that it was held by that Court as part of the court record. Those attempts culminated in an Application in a Case the father filed in the Federal Circuit Court on 7 November 2016 seeking that the Federal Circuit Court provide him with the transcript.
11. On 20 February 2017, Judge Jones permitted the father to read and take notes of the trial transcript available in that Court’s file, however, his application was otherwise dismissed.
12. The father appealed those orders.
13. The reasons for judgment for the 20 February 2017 orders recorded that the father’s evidence before the primary judge that the cost to the father of obtaining the transcript (via Auscript) would be $12,000 (at [7]). Those reasons also record the father’s sworn evidence that he cannot afford that expense.
14. The father submitted that his taxation returns for each of the past four completed financial years reflected taxable income of $20,141; $9,380; $16,144 and $3,019 respectively for those years. The father submitted that what limited capital he had retained following an earlier property settlement between the parents was exhausted by the legal representation he had in the parenting proceedings. The fact that the father had legal representation historically was also a matter the trial judge relied upon for rejecting the father’s evidence that he could not afford to pay $12,000 for the relevant transcript.
15. The reasons for judgment of 20 February 2017 reflect that her Honour primarily relied upon what her Honour described as a “policy” of the Federal Circuit Court emanating from that Court’s “Legal Committee”. The primary judge recorded at [6]

The court’s policy which has been considered by the Legal Committee of the Federal Circuit Court of Australia only recently last year provides that where a transcript of Court proceedings has been obtained, which is not a common occurrence, it may be made available to a party who seeks to appeal the decision or for whatever other reason for the purpose of reading and inspecting the transcript. Copies of the transcript are not to be provided.

16. Thus the primary judge made orders in conformity with the stated “policy”.
17. Section 89 of the Federal Circuit Court of Australia Act 1999 (Cth)(“the FCC Act”) provides that the Chief Judge is responsible for managing the administrative affairs of the Federal Circuit Court of Australia and s 93 of the FCC Act provides that the Chief Judge may appoint committees for the purpose of advising the Chief Judge in relation to the management of the administrative affairs of the Federal Circuit Court.
18. The “legal committee” of the Federal Circuit Court referred to by the primary judge is a committee appointed pursuant to s 93 of the FCC Act and it was reasonably assumed that the primary judge accurately stated the “policy” referred to in the reasons delivered on 20 February 2017.
19. However, s 43 of the FCC Act provides that the practice and procedure of the Federal Circuit Court of Australia is to be in accordance with Rules of Court made under the FCC Act.
20. Section 81 of the FCC Act contains the rule making power for the rules of court of the Federal Circuit Court. Notably, subsection (2) of s 81 provides that “Rules of Court have effect subject to any provision made by another Act, or by rules or regulations made under another Act, with respect to the practice and procedure in particular matters”. There is no reference in s 81(2) to any “policy” determinations.
21. Rule 2.08 of the Federal Circuit Court Rules 2001 provides for search, inspection and copying of documents forming part of that Court’s record. The relevant terms of r 2.08 are as follows:

2.08 Searching records

(1) The following persons may search the court record relating to a family law or child support case, and inspect and copy a document forming part of the court record:

(a) the Attorney-General;

(b) a party, a lawyer for a party, or an independent children’s lawyer, in the case;

(ba) if the case affects, or may affect, the welfare of a child – a child welfare officer of a State or Territory;

(c) with the permission of the Court, a person with a proper interest:

(i) in the case; or

(ii) in information obtainable from the court record in the case;

(d) with the permission of the Court, a person researching the court record relating to the case.

(2) For subrule (1), the parts of the court record that may be searched, inspected and copied are:

(a) court documents; and

(b) with the permission of the Court, any other part of the court record.

(2A) A permission:

(a) for paragraphs (1)(c) and (d) and (2)(b) – – may include conditions, including a requirement for consent from a person, or a person in a class of persons, mentioned in the court record; and

(b) for paragraph (1)(d) – – must specify the research to which it applies.

(3) In considering whether to give permission under this rule, the Court must consider the following matters:

(a) the purpose for which access is sought;

(b) whether the access sought is reasonable for that purpose;

(c) the need for security of court personnel, parties, children and witnesses;

(d) any limits or conditions that should be imposed on access to, or use of, the court record.

(4) Rule 2.32 of the Federal Court Rules applies to the searching of records in a proceeding that is not a family law or child support proceeding.

(5) In this rule:

court document includes a document filed in a case, but does not include correspondence or a transcript forming part of the court record.

Note 1: Section 121 of the Family Law Act restricts the publication of court proceedings.

Note 2: Access to court records may be affected by the National Security Information (Criminal and Civil Proceedings) Act 2004.

22. Rule 2.08(3) is expressed in mandatory language as to the matters to be considered in determining whether to give permission under the rule in an individual case. The rule reflects that a transcript obtained in a proceeding will form part of the “court record” but is not a “court document” as defined in the rule. Thus, permission has to be sought to obtain that part of the court record comprising a transcript. Notably, no general “policy” is referred to in r 2.08(3) amongst the mandatory considerations to be considered in determining, in an individual case, whether the permission sought ought be granted.
23. The primary judge did not make any reference to r 2.08 of the Federal Circuit Court Rules.
24. The effect of the Federal Circuit Court Rules as expressed in s 81(2) of the FCC Act would not seem to make the application of the relevant rule subject to any “policy”, as opposed to any relevant countervailing statutory provision.
25. The father contends that availability of the trial transcript is essential to enable him to advance his arguments in the parenting appeal.
26. Given the evidence as to the cost of obtaining a transcript from Auscript, a significant amount of public money had already been expended by the Federal Circuit Court in obtaining the trial transcript for a trial heard over six days. It would seem unreasonable that such expenditure having occurred, that the Family Court should also expend a similar significant amount of public money to obtain a transcript for the appeal, when that expenditure could easily be avoided by the Federal Circuit Court providing to Family Court the transcript.
27. Rule 2.08 of the Federal Circuit Court Rules does not confine access to that court’s record to parties to litigation. The Attorney-General, and indeed any party “with a proper interest”, may seek the Federal Circuit Court’s permission to, inter alia, obtain a copy of the transcript forming part of that court’s record in this case. This Court has a legitimate interest in ensuring that pending appeals be resolved and indeed there is a statutory directive under s 97(3) of the Act to ensure that proceedings are not protracted.
28. The appeal was dismissed for want of jurisdiction, a direction was made in the parenting appeal that the Appeals Registrar, on behalf of Family Court, to seek administratively permission from the Federal Circuit Court pursuant to r 2.08 of the Federal Circuit Court Rules as a “person with a proper interest” to obtain a copy of the transcript from the Federal Circuit Court for the purpose of the parenting appeal.
29. Justice Kent stated that “It can reasonably be observed that the Attorney-General has a legitimate interest in each of :

Access to justice for litigants in appeals to this Court;

The preservation of public funds; and

The resolution of appeals in this Court.”

30. Justic Thackray agreed with the reasons of Justice Kent.
31. Justice Strickland agreed with the orders proposed by Justice Kent and the reasons provided for those orders. However, he also added that it was:

It is unfortunate, to say the least, that this matter has reached the stage that it has, and particularly because the father’s appeal has been held in abeyance pending the resolution of whether he could obtain a copy of the transcript that in fact had been obtained by the trial judge for the purpose of enabling her Honour to hear and determine the parenting proceedings before the Federal Circuit Court.

Hopefully, in identifying a pathway by which not only the father but also the mother can be provided with a copy of the relevant transcript the issue can be resolved and the appeal can proceed and justice can be served.