Barlow & Sellers

[2022] FedCFamC1A 22

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Barlow & Sellers [2022] FedCFamC1A 22

Appeal from:

Barlow & Sellers [2021] FedCFamC1F 327

Appeal number(s):

NAA 15 of 2022

File number(s):

ADC 3611 of 2012

Judgment of:

AUSTIN J

Date of judgment:

18 February 2022

Catchwords:

FAMILY LAW – APPEAL – Practice and procedure – Where the appeal was listed to afford the appellant the opportunity to be heard as to why the incompetent grounds of appeal should not struck out – Where many of the grounds appear to be completely misconceived – Where no submission made by the appellant persuaded that any of those grounds of appeal had any reasonable prospect of success – Where the remaining grounds seem at least arguable but are not yet sufficiently particularised – Where, with the exception of five grounds, all others are struck out as incompetent.

Legislation:

Disability Discrimination Act 1992 (Cth)

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth) Pt VII, ss 69E, 69H

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32

Cases cited:

House v The King (1936) 55 CLR 499; [1936] HCA 40

Rice v Asplund (1979) FLC 90-725; [1978] FamCA 84

Number of paragraphs:

11

Date of hearing:

18 February 2022

Place:

Newcastle (via video link)

The Appellant:

Litigant in person

Counsel for the Respondent:

Mr Roberts

Solicitor for the Respondent:

Thomson & Associates

Counsel for the Independent Children's Lawyer:

Ms Olsson

Solicitor for the Independent Children's Lawyer:

Silkwoods Chambers

ORDERS

NAA 15 of 2022
ADC 3611 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS BARLOW

Appellant

AND:

MR SELLERS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	18 FEBRUARY 2022

THE COURT ORDERS THAT:

1.All but Grounds 1, 2, 4, 5 and 11 of the Amended Notice of Appeal filed on 27 January 2022 are struck out.

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 Barlow & Sellers has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. This is an appeal by the mother from final parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).

2. In essence, the appealed orders provide for the father to have sole parental responsibility for the parties’ two children, for the children to live with the father, and for the children to only communicate electronically with the mother. The orders expressly make no provision for the children to spend time with the mother.

3. The appeal was listed today to give the mother the chance to submit why one or more of the apparently incompetent grounds of appeal should not be struck out. In advance of the hearing, the mother filed written submissions entitled “Why the Appeal should be Upheld”, the content of which bore little correlation with the grounds of appeal. Instead, it was a discursive commentary on whether she should have a litigation guardian appointed for her in the appeal, her denial of procedural fairness by the primary judge, the inadequate consideration of evidence at trial, judicial bias, the conduct of the “family assessment” during the litigation, the treatment of evidence concerning family violence, the primary judge’s “direct discrimination” against the children by reason of “their disability”, and her application for costs of the appeal.

4. Although the substantive appeal must be heard by the Full Court (s 32(1(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)), a single judge can summarily dismiss the appeal or make other interlocutory orders (ss 32(3) and 32(5) of the FCFCA Act).

5. It is unnecessary to recite the grounds of appeal pleaded in the Amended Notice of Appeal filed on 27 January 2022. Instead, it will suffice to summarise those which appear to be completely misconceived. The mother alleges the primary judge:

   (a)made “illegal” orders (Ground 3);

   (b)engaged in “extreme maternal alienation” (Ground 6);

   (c)“breached multiple legislation”, including the “Anti-Discrimination Act of SA 1984” and the Disability Discrimination Act 1992 (Cth) (Ground 7);

   (d)perpetrated “direct discrimination” against the mother and children by reasons of orders made in February 2020, long before the appealed orders in December 2021 (Ground 8);

   (e)perpetrated “direct discrimination” during the trial in November 2020 (Ground 9) and at some indistinct point during the trial (Ground 10);

   (f)wilfully breached s 65 of the Act (Ground 11);

   (g)breached legislation, including the “Data Communication Act 2013” and the “Data Survallance Act SA 2015 (sic)” (Ground 11);

   (h)“fail[ed] to uphold and address” s 60NAF of the Act before the trial commenced (Ground 12);

   (i)made orders which “endanger the lives of children” (second misnumbered Ground 12);

   (j)“fail[ed] to abide by and uphold established case law precedents, including Asplund and Rice 1975” (Ground 14); and

   (k)“fail[ed] to take action against collusion between the ICL and the counsel for the father” (Ground 15)

6. No submission made by the mother persuaded that any of those grounds of appeal had any reasonable prospect of success because, in particular:

   (a)the parenting orders were not “illegal”, as jurisdiction existed under ss 69E and 69H of the Act and they were made within statutory power (Ground 3);

   (b)the bare allegation that the primary judge, by making the appealed orders, engaged in “maternal alienation” is not a recognised species of appealable error (Ground 6);

   (c)when exercising discretion under Pt VII the Act, the primary judge was not bound by the terms of any Federal or State anti-discrimination legislation and, in any event, the appeal is confined to the orders made in December 2021 and does not extend to orders made at earlier stages of the proceedings (Grounds 7, 8, 9, 10 and 11);

   (d)the cited legislation dealing with “data communication” and “data surveillance” does not seemingly exist and, even if it did, the manner in which it was breached was not made plain (Ground 11);

   (e)the Act does not contain either ss 65 or 60NAF, so the alleged failure to correctly apply such non-existent provisions is misguided (Grounds 11 and 12);

   (f)the contention that the appealed orders endanger the children’s lives is a statement of the mother’s belief, but not a competent ground of appeal (misnumbered Ground 12);

   (g)the contention of the primary judge’s failure to apply established legal principle may potentially be a valid ground of appeal, but not unless it is usefully particularised, and it is noteworthy that the guideline within Rice v Asplund (1979) FLC 90-725 certainly had no application here because the primary judge heard the parties’ applications on substantive merit (Ground 14); and

   (h)the similarity of the applications made in respect of the children by the father and the ICL did not of itself prove any collusion between them or any lack of impartiality by the ICL but, in any event, the mother did not apparently ask the primary judge to do anything in relation to the alleged collusion and so cannot complain of it in the appeal (Ground 15).

7. The mother’s written submissions cited House v The King (1936) 55 CLR 499, so she is aware of relevant authority. Bearing in mind the appealed judgment was entirely discretionary, the only grounds of appeal which ostensibly appear capable of being competently advanced are those which allege the primary judge:

   (a)made findings which could not be supported by the evidence (Ground 1);

   (b)arrived at a decision which was clearly wrong (Ground 1);

   (c)wilfully failed to consider evidence (Ground 2);

   (d)denied procedural fairness (Ground 4);

   (e)was biased (Ground 5);

   (f)refused the mother’s “motion to dismiss the Family Assessment of 2020” (Ground 5); and

   (g)breached the Evidence Act 1995 (Cth) (Ground 11)

8. While those discrete aspects of the existing grounds of appeal seem at least arguable, they are not yet sufficiently particularised, which detail will need to be addressed in the mother’s Summary of Argument.

9. It would be unfair to the mother to summarily dismiss the entire appeal at this stage, but she may only prosecute Grounds 1, 2, 4, 5 and 11.

10. Grounds 3, 6, 7, 8, 9, 10, 12, the second misnumbered 12, 14 and 15 are struck out.

11. In due course, the Appeal Registrar will make procedural orders for the appeal to progress to hearing on that confined basis.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       18 February 2022