Beckford & Beckford

[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 (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.

4. 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).

5. 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.

6. 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

7. 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.

8. 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.

9. 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”).

10. The only application presently entertained is the application to review the decision of the appeal registrar to reject and not accept the Notice of Appeal for filing, which requires the de novo consideration of the competence of the Notice of Appeal.

    Disposition

11. None of the orders made on 23 January 2024 from which the applicant intends to appeal amounts to a “judgment” from which an appeal validly lies (s 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)). That is because none of the orders disposes of a justiciable dispute by determining any legal right enjoyed by the applicant (Commonwealth v Mullane (1961) 106 CLR 166 at 169). The orders which are the subject of the intended appeal are merely procedural directions and rulings to facilitate the future determination of the substantive cause under Pt VII of the Act.

12. Nor does any appeal lie from merely notations, which cannot take the place of or be seen to be orders (Oberlin & Infeld (2021) FLC 94-017 at [44]).

13. Since none of the orders the applicant proposes to challenge can be characterised as a “judgment”, there is no right of appeal. The appeal registrar correctly rejected the Notice of Appeal. It should not be accepted for filing.

14. The applicant requested that his review application be determined “on the papers without an oral hearing” in accordance with r 13.38 and Pt 5.3 of the Rules, but the application was instead listed for hearing in open court to afford him the chance to make every submission he considered necessary. The applicant relied upon, but did not orally elaborate, the written submissions he filed on 11 April 2024 in advance of the hearing. The applicant’s belief in the merit of his proposed grounds of appeal makes no difference. The proposed appeal is incompetent because there is no judgment from which to appeal.

15. The Application in an Appeal filed on 15 March 2024 is dismissed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       15 April 2024