Beale & Harvie
[2023] FedCFamC1A 181
•23 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Beale & Harvie [2023] FedCFamC1A 181
Appeal from: Harvie & Beale [2023] FedCFamC1F 782 Appeal number: NAA 280 of 2023 File number: MLC 9904 of 2015 Judgment of: AUSTIN J Date of judgment: 23 October 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Summary dismissal – Where the appeal was listed to afford the appellant mother the opportunity to be heard about why the appeal should not be summarily dismissed – Where the mother appeals from an order dismissing her application to discharge the Independent Children’s Lawyer (“the ICL”) – Where pursuant to s 68L of the Family Law Act 1975 (Cth) the appointment of an ICL in parenting proceedings lies in the discretion of the Court, as does the discharge of an ICL – Where the mother’s claim of the denial of procedural fairness is misconceived – Where the mother was afforded the chance to be heard but failed to attend the hearing before the primary judge – Where the mother appeals orders listing the matter for further directions and reserving costs of the father and the ICL – Where appeals only lie from judgments – Where none of the orders made by the primary judge is a judgment capable of supporting an appeal – Appeal summarily dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII, s 68L
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 32, 46
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91
Fierro & Fierro [2022] FedCFamC1A 72
Lloyd and Lloyd and Child Representative (2000) FLC 93-045
Lorde & Chu [2014] FamCAFC 228
Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38
Number of paragraphs: 17 Date of hearing: 23 October 2023 Place: Newcastle (via Microsoft Teams) The Appellant: Litigant in person (did not participate) Solicitor for the Respondent: Higgins Legal Counsel for the Independent Children's Lawyer: Ms Ingenito Solicitor for the Independent Children's Lawyer: Macgregor Barristers and Solicitors ORDERS
NAA 280 of 2023
MLC 9904 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BEALE
Appellant
AND: MR HARVIE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
23 OCTOBER 2023
THE COURT ORDERS THAT:
1.The appeal is summarily 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 Beale & Harvie has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
This appeal lies from interlocutory orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 12 September 2023 in parenting proceedings contested between the parties under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
The subject orders dismissed the appellant mother’s application to discharge the Independent Children’s Lawyer (“the ICL”) (Order 1), listed the proceedings before the Chief Justice for further directions on 14 September 2023 (Order 2), and reserved the costs of the father and the ICL (Order 3).
The appeal was initially listed today to invite the mother’s submissions about the utility of the appeal, given the trial of the underlying proceedings was fixed to be heard last week. However, in the meantime the trial was pushed back by several months and will now be heard in January 2024.
Nevertheless, the apparent incompetence of the appeal necessitates early attention being given to it to avoid the Court’s resources being wasted and the father and the ICL wasting costs in opposing it. Accordingly, the appeal remained listed to explain the deficiencies to the unrepresented mother and afford her the chance to explain why the appeal should not be summarily dismissed pursuant to the power reposing in s 46(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”).
The mother did not appear today. Instead, she emailed a document entitled “Notice of Appeal Submissions” at 10.05 am this morning. It begins by saying this:
Regrettably, I cannot attend the upcoming hearing on October 23, 2023, due to private reasons. I make these submissions in support of my position that the NOA should proceed to full hearing by the Full Court.
In the event that this court dismisses this appeal without proper hearing, I ask that full reasons are provided to facilitate an application for special leave to the High Court.
The mother’s submissions have been taken into account, but they do not discharge her burden of demonstrating that the appeal enjoys reasonable prospects of success. That was the position uniformly adopted by the father and the ICL.
Appeals only lie from “judgments” pursuant to s 26(1) of the FCFCA Act, yet none of the orders made by the primary judge on 12 September 2023 is a “judgment” capable of supporting an appeal. Judgments are confined to the “operative judicial acts” embodied in the court’s orders which resolve the justiciable dispute or some identifiable part of it (Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64).
The order reserving costs (Order 3) did not determine any right enjoyed by the parties.
The order listing the proceedings before the Chief Justice two days afterwards (Order 2) did not determine any right enjoyed by the parties.
The order dismissing the mother’s application to discharge the ICL (Order 1) did not determine any right enjoyed by the parties either.
As was explained in Fierro & Fierro [2022] FedCFamC1A 72:
16.In this instance, the primary judge merely ruled on a procedural question – whether or not Ms E could remain the appointed ICL – and did not resolve the parties’ rights in any way. The parties’ claims for relief in respect of the subject child within the cause under Pt VII of the Act in the underlying proceedings are yet to be heard and determined. The dismissal of the application to remove Ms E as the ICL is not a “judgment” from which any appeal competently lies.
17.The applicant engaged with this argument, submitting:
8.Finally, if we are to accept [the ICL’s] counsel’s submission that the order of 13 April 2022 is not appealable (and I do not). Then that in and of itself raises a point of principle which warrants a grant of leave it is submitted. …
9.It is submitted….the decision of 13 April 2022 determined to a finality an interlocutory proceeding as between the applicant and the respondent ICL/respondents and therefore rights of the parties were determined. … Respectfully, this appeal is distinguishable from a mere ruling of evidence where no proceeding or identifiable part of a proceeding was determined. It follows that the decision is appealable.
18.The submissions are rejected. The dismissal of the application to discharge the particular ICL assigned to the proceedings did not determine in any way any of the applicant’s legal rights.
19.Another judge exercising appellate jurisdiction previously heard and dismissed an appeal from an order dismissing an application to discharge an ICL (Lim & Zong (2021) FLC 94-048 at [2]–[4]), but this threshold issue was not raised by counsel with the judge in that appeal. As the issue was not broached, the entertainment of the appeal in that instance does not stand as binding authority for the proposition that appeals from such procedural orders are competent.
20.It may be that, once orders are finally pronounced under Pt VII of the Act to conclude the parties’ substantive dispute, the applicant will be satisfied and no appeal will result. Even if he is dissatisfied, in any appeal brought from those final orders it might still be open to challenge the primary judge’s interlocutory refusal to discharge Ms E, provided certain conditions are met (Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 482–484 and 494–497).
Parties have no right to the appointment of an ICL in parenting proceedings. Such an appointment lies in the discretion of the Court (s 68L of the Act). Nor do they have a right to an order discharging an ICL with whom they are dissatisfied, though they are free to make an application for such an order (Lloyd and Lloyd and Child Representative (2000) FLC 93-045 at 87,687). If the Court dismisses the discharge application, there is no infringement of the litigant’s rights which can be vindicated by an appeal from that discretionary procedural order.
Not only are the subject orders incapable of supporting an appeal, the grounds of the appeal set out in the Notice of Appeal filed on 9 October 2023 are misguided. They all complain of error in the dismissal of her application to discharge the ICL (Order 1), albeit for different reasons.
The primary claim of the denial of procedural fairness is evidently misconceived because the mother was invited to attend the hearing before the primary judge by electronic means, but failed to do so. She was given the chance to be heard but did not take it. Procedural fairness only requires that the litigant is afforded the chance to be heard. No court is required to delay the proceedings merely because a party declines to appear (Allesch v Maunz (2000) 203 CLR 172 at 182–186 and 189–191; Taylor v Taylor (1979) 143 CLR 1 at 4).
The mother has since made no application within the original jurisdiction under r 10.13(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) to set aside Order 1 due to it being made in her absence, which is the course she should take before launching an appeal (Lorde & Chu [2014] FamCAFC 228 at [36]).
The other bare claims of legal and discretionary error are not substantiated merely by observing that the primary judge made an order which was inconsistent with the outcome she sought.
The appeal is summarily dismissed, which order a single judge exercising appellate jurisdiction is empowered to make (s 32(3)(b) and s 32(5) of the FCFCA Act).
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 23 October 2023
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