Adzic & Adzic
[2024] FedCFamC1A 207
•7 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Adzic & Adzic [2024] FedCFamC1A 207
Appeal from: Adzic & Adzic (No 2) [2024] FedCFamC1F 679 Appeal number(s): NAA 192 of 2024 File number: BRC 10366 of 2021 Judgment of: MCCLELLAND DCJ, WILLIAMS & SCHONELL JJ Date of judgment: 7 November 2024 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant appeals from orders made by the primary judge temporarily removing the eldest child from the Airport Watchlist – Where the appellant seeks leave to adduce further evidence in the appeal – Where the further evidence was not relevant to the appealed orders nor determination of the appeal – Application dismissed – Where the grounds of appeal are incompetent and fail to establish appellable error – Where the appellant’s Summary of Argument is inadequate – Short form reasons delivered pursuant to s 36(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Appeal dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 35, 36
Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) rr 10.13, 13.23
Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
House v The King (1936) 55 CLR 499; [1936] HCA 40
Newett & Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11
Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50
Number of paragraphs: 29 Date of hearing: 29 October 2024 Place: Heard in Brisbane, delivered in Melbourne The Appellant: Litigant in person The Respondent: Litigant in person Counsel for the Independent Children’s Lawyer: Mr Taylor Solicitor for the Independent Children’s Lawyer: Norman & Kingston ORDERS
NAA 192 of 2024
BRC 10366 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ADZIC
Appellant
AND: MS ADZIC
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, WILLIAMS & SCHONELL JJ
DATE OF ORDER:
7 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Adzic & Adzic has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, WILLIAMS & SCHONELL JJ:
INTRODUCTION
By an Amended Notice of Appeal filed 30 August 2024, the appellant appeals from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 12 June 2024 (“the appealed orders”). On 3 October 2024, the appealed orders were amended pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) to include three notations, which have no bearing on the appeal.
Orders 1 and 2 of the appealed orders temporarily removed the parties’ older child from the Airport Watchlist and suspended an order restraining him from leaving Australia. The purpose of the appealed orders was to enable the child to travel to Region E in September 2024, to pursue his language studies. Order 3 reinstated the child’s name on the Airport Watchlist, upon his return to Australia.
The respondent and the Independent Children’s Lawyer oppose the appeal and seek its dismissal.
For the reasons that follow, the appeal will be dismissed, arising from both its incompetence and futility.
BACKGROUND
The appellant and the respondent married in 2007, and separated on 5 May 2021. Their two children are aged 17 and 14.
On 31 August 2021, the respondent filed an Amended Initiating Application seeking parenting orders for the children to live with her and spend time with the appellant, as agreed between them.
On 17 November 2021, the appellant filed a Response seeking parenting orders for the children to live with him and spend time with the respondent in accordance with the children’s wishes, or as agreed by the parties.
On 18 January 2022, orders were made by a Senior Judicial Registrar (“the January 2022 orders”) which placed the parties two children, X and Y, on the Airport Watchlist and restrained them from leaving Australia.
On 8 April 2022, interim orders were made by the primary judge for the children to live with the respondent and spend no time with the appellant. At the time of the April 2022 hearing, the appellant was on remand at a correctional facility. Following an alleged attack on the respondent in her home in March 2022, the appellant was arrested and charged with serious offences involving violence towards the respondent. The appellant remains incarcerated pending his criminal trial.
On 20 May 2024, the respondent’s lawyers forwarded a letter to the appellant seeking his permission for the child to be able to travel to Region E. The letter enclosed a proposed order and an Information Sheet from an education institute, about the proposed 2024 tour of Country F and Country G.
On 10 June 2024, the primary judge conducted an electronic trial management hearing, during which the respondent was granted leave to make an oral application seeking permission for the child to travel to Region E in September 2024. The primary judge understood the appellant did not oppose the child’s travel, as the appellant stated, “I would like both of my children to be removed from airport restriction list [sic]” (Transcript 10 June 2024, p.8 lines 4–5). There was no proper evidence before the primary judge to enable him to entertain any such application by the appellant, for both children to be removed from the Airport Watchlist.
The primary judge acceded to the respondent’s application for orders permitting the older child to travel to Region E. Prior to making orders, his Honour required the respondent to file an affidavit about the proposed trip, which the respondent did.
On 12 June 2024, the primary judge made the appealed orders in chambers. On 3 October 2024, the orders were subsequently amended pursuant to r 10.13.
APPLICATION IN AN APPEAL
On 16 September 2024, the appellant filed an Application in an Appeal seeking to adduce further evidence. The further evidence sought to be adduced pertains to the appellant’s untested allegations against the respondent, and impediments preventing a relationship between the children and their extended paternal family. None of the evidence was relevant to the appealed orders or determination of the appeal, and most of it predated the hearing.
The Application in an Appeal was heard, and dismissed, during the appeal hearing and the appellant was advised reasons would be given as part of the appeal judgment.
Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) confers on an appellate court a discretionary power to grant leave to receive further evidence. In CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at [111]–[115], the High Court of Australia considered the principles relevant to the exercise of the discretion.
As the High Court explained in CDJ v VAJ, the point of further evidence on appeal is to demonstrate error, bolster the reasons under attack, or provide material for any re-exercise of discretion. We are unable to see how the proposed material does so. Generally speaking, material that was available to be used at the hearing, but was not, should not be readily admitted into an appeal. For these reasons, the appellant’s application for leave to adduce further evidence was refused.
GROUNDS OF APPEAL
For the reasons explained below, the grounds of appeal are incompetent, do not establish appellable error, and the appeal does not raise any question of general principle. We therefore provide short form reasons pursuant to s 36(2) of the FCFCOA Act.
Contrary to Part D of the Amended Notice of Appeal, where the appellant refers to the appealed orders as those made on 12 June 2024, the orders sought by the appellant at Part F, are directed to the January 2022 orders and not the appealed orders. The appellant appeared to be under the misapprehension his appeal was directed to the January 2022 orders, when it was not.
Whether or not the January 2022 orders placing the children on the Airport Watchlist and restraining them from leaving the country should be discharged, will ultimately be a matter to be agitated at the final trial of the respective parenting applications, after the disposition of the appellant’s criminal trial. It is not a matter arising from the appeal before us which requires determination by this Court.
The grounds of appeal are set out at Part E of the appellant’s handwritten Amended Notice of Appeal filed 30 August 2024. They comprise a loquacious narrative of the appellant’s perspective of the conduct of the matter, complaints about the primary judges failure to hear and determine the appellant’s purported oral application to permanently remove both children from the Airport Watchlist in the absence of any relevant supporting evidence, the children’s connection to the paternal family and Country B, allegations about the conduct of the respondent including asserted family violence perpetrated by her on the children, complaints about the court process and the state authorities, general criticism of the primary judge and lawyers for the other parties, and a misconception about the duration of the January 2022 orders.
It is useful to restate the relevant principles which govern appeals from discretionary judgments. It is well settled that error of the type identified in House v The King (1936) 55 CLR 499 (“House v the King”) at 504–505 must be established. There, the majority of the High Court said:
… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred …
The grounds of appeal are defective in multiple respects. The grounds fail to set out “a specific and concise statement of the point sought to be argued”: Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50 at [2]. No House v the King error is identified, nor do the grounds identify where a miscarriage of justice has occurred, resulting from the manner in which the hearing was conducted. Neither does the appellant’s Summary of Argument support the grounds of appeal.
The appellant’s Summary of Argument is a narrative of generalised complaints and assertions dating from 2021 onwards, including complaints about poor procedure, delays in the criminal process and allegations of family violence perpetrated by the respondent. There is nothing contained in the Summary of Argument as to how the complaints and assertions set out therein, are relevant to the appealed orders, or why the orders subject to challenge are erroneous.
Furthermore, the Summary of Argument does not comply with r 13.23(2)(a) of the Rules, which requires the appellant to set out each ground of appeal and, for each ground of appeal, a statement of the arguments setting out the points of law or fact and the authorities relied on (together with references to the relevant pages of the appeal book and transcript).
It is for the appellant to identify error on the part of the primary judge and then to persuade the appeal court that error has been made. An appellate court cannot be expected to fossick through the broadly expressed contentions and assertions set out in an appellant’s Summary of Argument, with a view to identifying a specific and concise ground or grounds of appeal: Newett & Newett (No 2) (2021) FLC 94-051 at [34], quoting Bahonko v Sterjov (2008) 166 FCR 415 (“Bahonko”) at [3]. In Bahonko, the Full Court of the Federal Court of Australia said:
3.Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22]-[30]; Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [45]). This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
In addition to the failure to identify any appellable error on the part of the primary judge in either the grounds of appeal or the Summary of Argument, the appeal was ultimately futile. At the time of the appeal hearing, the child had travelled to Region E and had returned to Australia. Those events rendered the appeal against the 12 June 2024 orders, nugatory.
DISPOSITION
The appeal must be dismissed.
COSTS
Neither the respondent nor the Independent Children’s Lawyer sought an order for costs from the appellant in the event the appeal was dismissed.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Williams & Schonell. Associate:
Dated: 7 November 2024
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