Bellmore & Ferres

[2023] FedCFamC1A 132

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Bellmore & Ferres [2023] FedCFamC1A 132

Appeal from:

Ferres & Bellmore [2023] FedCFamC1F 363

Appeal number:

NAA 203 of 2023

File number:

BRC 7266 of 2012

Judgment of:

AUSTIN J

Date of judgment:

11 August 2023

Catchwords:

FAMILY LAW – APPEAL – Parenting – Practice and procedure – Where the appellant was invited to show cause why the appeal should not be summarily dismissed – Where grounds upon which a discretionary judgment may be challenged on appeal are well known – Where the single ground of appeal does not fall within the rubric of those principles – Where the appeal is bereft of any legitimate contention of appealable error – Where the appeal is incompetent – Where the appeal has no reasonable prospect of success in its current form – Appeal dismissed.

Legislation:

Family Law Act 1975 (Cth) Pt VII, s 102NA and s 69ZX

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32 and s 46

Cases cited:

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

Number of paragraphs:

13

Date of hearing:

11 August 2023

Place:

Newcastle (via video link)

Solicitor for the Appellant:

Litigant in person

Solicitor for the Respondent:

Northside Family Law Centre

Solicitor for the Independent Children's Lawyer:

Wallace Perkins Family Law

ORDERS

NAA 203 of 2023
BRC 7266 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR BELLMORE

Appellant

AND:

MS FERRES

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	AUSTIN J
DATE OF ORDER:	11 august 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 Bellmore & Ferres 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 appeal was listed today for the appellant to show cause why it should not be summarily dismissed pursuant to s 46(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”), on account of it having no reasonable prospect of success.

2. The appellant was unable to discharge the onus and so the appeal is summarily dismissed.

   Background

3. The parties contested parenting proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) before the Federal Circuit and Family Court of Australia (Division 1).

4. The trial was conducted over several days in February and March 2023. The appellant was not legally represented, though that was apparently his choice (at [31]). Section 102NA of the Act applied which meant that, without a lawyer, the appellant could not personally cross-examine the respondent.

5. On 6 March 2023, the final day of trial, the primary judge delivered ex tempore reasons to explain the manner in which the cause of action would be determined, but ordered the parties to bring in orders reflecting the reasons. In the meantime, the primary judge made some interim orders which broadly reflected his Honour’s findings.

6. Some delay elapsed before the parties brought in the orders as directed, but final orders were made by the primary judge on 19 July 2023. The orders generally provide for the respondent to have sole parental responsibility for the child, for the child to live with the respondent, and for the child to spend regular amounts of time with the appellant during school terms and school holidays. That result coincided with the child’s expressed view (at [10]–[12]) and the expert opinion evidence (at [21], [37]–[38] and [40]–[41]).

7. By Notice of Appeal filed on 3 August 2023, the appellant appealed from all 39 orders made by the primary judge.

   The appeal

8. The solitary ground of appeal brought by the appellant pleads this:

   1.The three day Trial lasted for six months during this process the [Respondent] canceled time ignoring the interim order which the trial Judge did not address. Instead went on to make a final order for the [Appellant] to spend time with the child knowing that time was not occurring. If the Trial Judge could not enforce the interim order how can he make a final order for time to occur which is still not happening.

   The [Respondent] was proven to have mental health issues and yet was given sole parenting responsibilities with the Trial Judge knowing that the other parent had no mental health issues and all rights were taken off him for no reason.

   (As per the original)

9. As can be seen, the ground is no more than a grievance about several different things: the trial taking three days; the respondent’s alleged disobedience of orders; the primary judge’s alleged ignorance of supposed proof of the respondent’s “mental health issues”; and the allegedly unjustified removal of parental responsibility for the child from the appellant.

10. The orders made by the primary judge embodied a discretionary judgment made under Pt VII of the Act. The grounds upon which a discretionary judgment may be challenged on appeal are well known (House v The King (1936) 55 CLR 499 at 504–505). None of the multiple complaints captured by the solitary ground of appeal falls within the rubric of those principles. Nor does the ground of appeal assert other recognisable forms of appealable error, such as judicial bias, the deprivation of procedural fairness, or the inadequacy of reasons.

11. The contents of the Notice of Appeal also contains this complaint, though it is not styled as a ground of appeal:

    6.1The [Appellant] wasn’t given the freedom to question the witnesses with the trial judge abruptly stopping all questioning each time. The [Appellant] was denied the right to question his own witness freely.

    (As per the original)

12. While the transcript of the trial is not yet available to reveal how the appellant was precluded from questioning witnesses, three propositions are irrefutable. First, the appellant could not possibly have been given any freedom to question the respondent because of the application of s 102NA of the Act. Secondly, the primary judge had wide power to control the cross-examination of witnesses under s 69ZX(2)(i) of the Act. Thirdly, the appellant could not have been permitted to question his own witness freely as she filed an affidavit comprising her evidence-in-chief.

13. Since the appeal is bereft of any legitimate contention of appealable error, it is incompetent. It has no reasonable prospect of success in its current form and so should be dismissed, which dismissal order may be made by a single judge (s 32(3)(b) and s 32(5) of the FCFCA Act).

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       11 August 2023