Beckford & Beckford

Case [2024] FedCFamC1A 57

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Beckford & Beckford [2024] FedCFamC1A 57

Appeal from: Orders 23 January 2024
Appeal number: NAA 60 of 2024
File number: MLC 2438 of 2023
Judgment of: AUSTIN J
Date of judgment: 15 April 2024
Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the appeal registrar’s decision to reject his Notice of Appeal for filing – Where the orders the applicant seeks to appeal are procedural directions and do not amount to a judgment from which an appeal validly lies – Where the appeal registrar correctly rejected the Notice of Appeal – Application dismissed.
Legislation:

Family Law Act 1975 (Cth) Pt VII, s 102NA

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, r 13.38
Cases cited:

Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28

Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66
Number of paragraphs: 15
Date of hearing: 15 April 2024
Place: Newcastle (via Microsoft Teams)
Counsel for the Applicant: Litigant in person
Solicitor for the Respondent: Juno Family Law
Counsel for the Respondent: Ms Damon
Solicitor for the Independent Children's Lawyer: Did not participate

ORDERS

NAA 60 of 2024
MLC 2438 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR BECKFORD

Applicant
AND:

MS BECKFORD

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

15 APRIL 2024

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 15 March 2024 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 Beckford & Beckford has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

  1. These reasons explain the dismissal of an application to review the decision made by the appeal registrar on 20 February 2024 refusing to accept and file the applicant’s Notice of Appeal.

    Background

  2. The applicant is engaged in litigation under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) against the respondent and an Independent Children’s Lawyer, with the trial of the proceeding fixed to start on 13 May 2024 before a judge of the Federal Circuit and Family Court of Australia (Division 2).

  3. The proceeding was listed before the primary judge for a directions hearing on 23 January 2024, at which time her Honour fixed the date for trial…

Continue reading Beckford & Beckford

Sign in free to access the full text

Details
AGLC
Beckford & Beckford [2024] FedCFamC1A 57
Case
[2024] FedCFamC1A 57
Decision Date

CaseChat Overview and Summary

This case involved an application by Mr. Beckford to review a decision made by the appeal registrar on 20 February 2024, which rejected his Notice of Appeal. The parties are engaged in family law litigation under the Family Law Act 1975 (Cth), with the trial set to commence on 13 May 2024. The primary judge had made several orders, including setting a trial date, imposing conditions under section 102NA(1)(c) of the Act, and providing supplementary procedural directions. Mr. Beckford attempted to appeal certain orders, but the appeal registrar refused to accept his Notice of Appeal as none of the orders appealed from constituted a "judgment" from which an appeal could validly lie.

The legal issue before the court was whether the appeal registrar was correct in rejecting Mr. Beckford's Notice of Appeal. The court needed to determine if the orders from which Mr. Beckford intended to appeal were appealable judgments. The court found that the appeal registrar was correct in her decision because the orders in question were procedural directions and not judgments. Consequently, they were not appealable. Additionally, the court considered the timeliness of Mr. Beckford's application for review, and while it was granted an extension of time to file the application, the court dismissed the application for review because the substantive appeal could not be heard together with the review application. The procedural fairness of the respondent and the Independent Children's Lawyer required that they be given adequate notice and a chance to respond to the appeal.

The court dismissed Mr. Beckford's application to review the appeal registrar's decision, finding that the appeal registrar was correct in rejecting the Notice of Appeal. The court granted an extension of time for filing the application for review but denied the other proposed orders. The substantive appeal could not be heard together with the review application, and procedural fairness required that the respondent and the Independent Children's Lawyer be given notice and an opportunity to respond to the appeal. The court made no further orders regarding the substantive appeal.

Orders

Orders of the court

NAA 60 of 2024

MLC 2438 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR BECKFORD

Applicant

AND:

MS BECKFORD

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

15 APRIL 2024

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 15 March 2024 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).

Background

Background to the litigation

These reasons explain the dismissal of an application to review the decision made by the appeal registrar on 20 February 2024 refusing to accept and file the applicant’s Notice of Appeal.Background The applicant is engaged in litigation under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) against the respondent and an Independent Children’s Lawyer, with the trial of the proceeding fixed to start on 13 May 2024 before a judge of the Federal Circuit and Family Court of Australia (Division 2). The proceeding was listed before the primary judge for a directions hearing on 23 January 2024, at which time her Honour fixed the date for trial (Order 1), made orders against the applicant under s 102NA(1)(c) of the Act (Orders 11–12), and made supplementary procedural directions about fees, affidavits, case outlines, and subpoenas to ensure the cause would be ready for trial (Orders 2–10). For present purposes it suffices to describe the nature of the orders rather than recite them in full. Nearly a month later, on 20 February 2024, the applicant tried to file a Notice of Appeal embodying his intended appeal from a selection of the orders and notations, being those which fix the trial date and ensure the parties’ readiness for trial (Orders 1, 2, 3, 5, 6(b), 8 and 10, and Notations A and B). In a chain of emails sent between the appeal registrar and the applicant during the course of that day, the appeal registrar informed the applicant of her refusal to accept the Notice of Appeal for filing because none of the orders from which the applicant intended to appeal constitutes a “judgment” from which an appeal competently lies. The applicant had 21 days within which to review the appeal registrar’s decision, but did not do so. It was not until 15 March 2024 that the applicant filed an application seeking to review the appeal registrar’s decision.The Application The Application in an Appeal filed by the applicant seeks this relief:1.That the time to apply for an application for review of the Appeal Registrar order to reject the Notice of Appeal be extended to 28 days.2.That the application for review and the Notice of Appeal be heard together on an urgent basis.3.That the application for review and the Notice of Appeal be heard on papers without oral hearing given the urgency of the matter and to minimise cost. Notwithstanding the lateness of the review application, it will be entertained because it causes no prejudice to the respondent. The application for proposed Order 1 is therefore granted. However, proposed Orders 2 and 3 cannot be made. If the appeal registrar’s decision is successfully reviewed by the applicant, thereby resulting in his draft Notice of Appeal being accepted for filing, procedural fairness demands that the respondent and the ICL have adequate formal notice of the appeal and a fair chance to meet it. The substantive appeal cannot be heard in conjunction with the review application because procedural orders would first need to be made regulating the conduct of the appeal, assuming the applicant duly files a draft appeal book index within the time required by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.