Celia & Celia
[2025] FedCFamC1A 29
•28 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Celia & Celia [2025] FedCFamC1A 29
Appeal from: Celia & Celia [2024] FedCFamC2F 1581 Appeal number: NAA 294 of 2024 File number: MLC 5415 of 2023 Judgment of: AUSTIN J Date of judgment: 28 February 2025 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Property – Where the husband requires leave to appeal from interlocutory financial orders made by the primary judge – Where the primary judge dismissed the husband’s interlocutory injunction application with costs – Allegations of bias – Where mere disappointment with the original result is not evidence of bias – Where there was no denial of natural justice – Where contentions of jurisdictional, legal, evidentiary and discretionary error fail – Where the result was not manifestly unjust – Where several grounds are rejected as being incompetent – Application in an appeal to issue subpoena – Where the husband’s application to issue subpoena could not advance the prospects of the appeal – Application in an appeal to adduce further evidence – Where the further evidence does not aid the competency of the proposed appeal – Applications dismissed – Leave to appeal refused – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt VIII,
Federal Circuit and Family Court ofAustralia Act 2021 (Cth) s 28
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.04, 5.06, 5.08, 8.13, 12.17
Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02)
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32
House v The King (1936) 55 CLR 499; [1936] HCA 40
Medlow & Medlow (2016) FLC 93-692
Newett & Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11
Number of paragraphs: 48 Date of hearing: 28 February 2025 Place: Newcastle (via MS Teams) The Applicant: Litigant in person Counsel for the Respondent: Ms Teicher Solicitor for the Respondent: Jessy Bhullar Pty Ltd ORDERS
NAA 294 of 2024
MLC 5415 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR CELIA
Applicant
AND: MS CELIA
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
28 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The two outstanding Applications in an Appeal, filed respectively on 8 January 2025 and 10 January 2025, are dismissed.
2.The application for leave to appeal is dismissed.
3.The applicant shall pay the respondent’s party/party costs of the application, fixed in the sum of $5,000, the liability for payment of which is suspended until the proceedings at first instance under Pt VIII of the Family Law Act 1975 (Cth) are finalised.
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 Celia & Celia has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
This is an appeal, subject to the grant of leave to bring it, from interlocutory and procedural orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 25 October 2024 accomplishing two outcomes – first, dismissing with costs the applicant’s interlocutory application for injunctions restraining the respondent from operating her bank accounts pending the determination of financial proceedings between the parties under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”), and secondly, striking out an affidavit.
Leave to appeal is refused for the following reasons.
Background
The parties married in 2016 and separated in 2022. They have no children.
The applicant commenced proceedings seeking financial relief against the respondent in 2023.
In September 2024, the applicant filed an interim application seeking multiple injunctions to “freeze” the respondent’s operation of 11 bank accounts, which application the respondent resisted.
The primary judge heard and refused the application on 25 October 2024, making these three orders:
1. The application is dismissed.
2.The [applicant] pay the [respondent’s] costs of the application in the amount of $6,280.00 fixed in accordance with the scale set out in Schedule 1 to the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth).
3.The affidavit of [witness] filed 18 October 2024 be struck out pursuant to rule 8.18(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The reasons for Order 1 were multiple: the respondent only owned six of the 11 accounts in relation to which the applicant sought injunctions (at [17]); the respondent deposed how the unconditional and broad injunctions sought by the applicant would hinder her ability to cover her living expenses and meet her other financial obligations, including the legal costs of the proceedings (at [20]–[21]); the applicant did not demonstrate there was a real risk of the respondent’s unjustifiable dissipation of the funds held within the accounts (at [35]–[38]); and the application amounted to a “substantial overreach” (at [39]). His Honour cited and ostensibly applied the correct legal principles (at [25]–[34]).
Order 2 was made because the application was wholly unsuccessful and was unrealistically conducted (at [46]) though, significantly, the applicant was only ordered to pay the respondent’s party/party costs and not the indemnity costs she sought.
Order 3 was made because the subject witness affidavit was “inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative” (at [43]), evidently because the witness offered little more than derogatory comments about the respondent. Although the primary judge did not say so, the list of defaults in respect of the affidavit could also legitimately include these: it could not have been read in support of the interlocutory application (rr 5.04(1), 5.06 and 5.08(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)); it was not filed in support of any other application (r 8.13); and it was not filed in compliance with any trial direction.
The applicant filed a Notice of Appeal on 8 November 2024 challenging all three orders made on 25 October 2024.
Leave to Appeal
Since the intended appeal lies from all orders, three separate decisions are repudiated: the dismissal of the applicant’s application for interim injunctions (Order 1); the order for costs in relation to the interim dispute (Order 2); and the procedural order striking out the witness affidavit filed by the applicant (Order 3).
Order 3 is not a “judgment” capable of appeal. It is only a procedural direction tantamount to an evidentiary ruling (Commonwealth v Mullane (1961) 106 CLR 166 at 169). Even if the order could be regarded as an appealable judgment, the grant of leave to appeal from it is entirely unnecessary because the applicant did not suffer any injustice by the affidavit being struck out. The underlying proceedings are yet to be fixed for trial. The applicant will be able to rely upon such evidence as he thinks fit at the trial, provided it is admissible and filed in accordance with procedural directions, yet to be made.
Although the applicant did not seek leave to appeal, it is required in respect of Orders 1 and 2, as they are interlocutory financial orders (s 28(1)(b) of the Federal Circuit and Family Court ofAustralia Act 2021 (Cth); reg 4.02(1)(a) of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth)). The grant of such leave requires the applicant to show the decisions at first instance are attended by sufficient doubt to warrant appellate scrutiny and, additionally, substantial injustice would result if leave were refused, supposing the decisions at first instance were wrong (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]).
The applicant was unable to satisfy either of those conjunctive conditions. Reference to the grounds of appeal makes plain why.
Bias
Ground 14 (in part) contends the decision of the primary judge was “partial” and “biased” but, as articulated during oral submissions, the complaint of bias is no more than that the primary judge dismissed the applicant’s interlocutory application, which he believed was meritorious.
The only reference to bias in the Summary of Argument was this:
14.…[t]hus, the orders made regarding costs is against the [Rules] and is Partial, Biased, Discrimination & Racism with the [applicant].
(Emphasis in original)
The applicant did not attempt to differentiate between actual and apprehended bias, which are quite different concepts (Newett & Newett (No 2) (2021) FLC 94-051 at [54] and [75]), but the complaint evidently only relates to the decision made in respect of costs. Mere disappointment with the original result is not evidence of bias (Newett & Newett (No.2) at [59]–[80]).
Denial of natural justice
The ground complaining of the applicant’s denial of natural justice is pleaded this way:
18.The [Court] has denied the [applicant] of natural justice and has misused its powers and has Intentionally Defamed and Damaged the Character & Reputation of the [applicant] in the said Court proceedings. It is Unfair and not a “Justice” to the [applicant].
(As per the original)
The submission made in the Summary of Argument in support of the ground asserts:
18.The [Court] has failed to consider all the merits related to the “Application in a Proceeding” filed by the [applicant] on 09.09.2024. Though, in view of the merits of my case, the Court has already accepted, approved and sealed the “Application in a Proceedings” of the [applicant]. It is evident that said Application of the [applicant] filed by the Court is “Beyond Reasonable Doubt” is a genuine and valid application.
(As per the original)
Neither the ground nor the submission particularises the way in which the applicant was allegedly denied natural justice. Nor was the stray allegation of procedural unfairness, referred to in conjunction with the complaint of bias within Ground 14, meaningfully elaborated.
The applicant attended the hearing before the primary judge and was assisted by an interpreter, as he was in the appeal. His filed but unsworn affidavit was rejected by the primary judge for the failure to comply with procedural directions, explained by his Honour (at [8]–[13]), but his written and oral submissions were taken into account, so he was heard. There was no denial of natural justice. The applicant is just dissatisfied with the result.
Jurisdictional error
The ground complaining of jurisdictional error is pleaded this way:
10.The [Court] has committed a jurisdictional error while making the decision dated 25 October 2024.
The submission made in the Summary of Argument in support of the ground asserts:
10.The [Court] has Intentionally, knowingly and Wilfully ignored the bank Statements of the [respondent], where-in it is crystal clear that the [respondent] has continually been withdrawing cash funds from her all different bank accounts on a regularly basis, as evident from the Personal Bank Statements of the [respondent] and keeping / controlling my hard earned funds in cash on hand with her, in her possession…
(As per the original)
Rather than explaining the allegation of jurisdictional error, the submission instead complains of discretionary error in the form of the failure to take material evidence into account. But even that complaint is incorrect because the evidence on the point was discussed by his Honour. The respondent admitted withdrawing funds from her bank accounts to meet living expenses and other commitments, so those facts were not controversial. The respondent owned the money in her bank accounts and could spend it as she pleased, unless and until restrained by injunction. No injunction has been made. The primary judge found her expenditure from the accounts had not been “unjustifiable” and was unlikely to be so into the future (at [37]).
Legal error
Ground 16 complains of legal error in these terms:
The [Court] has wrongly applied & interpreted [the Act] while taking the decision on 25 October 2024.
(As per the original)
No legal error of the sort alleged in the ground is revealed by the content of the applicant’s Summary of Argument.
Evidentiary error
Ground 22 challenges Order 3 in these terms:
The [Court] struck-out the said “Affidavit” of the said witnesses, dated 18.10.2024, though pursuant to order no. 3 of the Court orders dated 16.09.2024, all the parties were specifically advised by the Hon’able Court to submit “Affidavit of Witnesses” in this regard. This is a violation of “order no. 3 of the Court orders dated 16.09.2024” and [the Act] as well.
(As per the original)
As earlier explained, Order 3 is not amenable to appeal, but in any event is immune from attack because there was no proper reason for the affidavit to be filed.
Discretionary error
Grounds 2, 4, 9, 19, 20, 21, 23, 25, 26 and 27 all allege discretionary error – by the failure of the primary judge to consider relevant factors.
The overlooked factors were alleged to be:
(a)the applicant’s “information, evidences (sic) and…claims” (Grounds 2, 20, 21, 25 and 26) and the “merits” of his interlocutory application (Ground 27), but these complaints are misconceived because the applicant’s application, evidence and submissions were all considered – just rejected.
(b)the “vulnerable conditions of the applicant”, as he is held in an immigration detention centre (Ground 4), but the applicant’s detention had no bearing upon the merit of his application, though it was nonetheless acknowledged by the primary judge (at [10]).
(c)the respondent’s alleged breaches of procedural orders made on 16 September 2024 (Ground 9), which are unparticularised either by the ground or the submissions made in support of it and are hence incapable of answer.
(d)the respondent’s bank statements (Ground 19), but at least some of the respondent’s bank statements were in evidence before the primary judge and the fault for those that were not rested with the applicant.
(e)the applicant’s “significant financial contributions” during his cohabitation with the respondent (Ground 20), but the parties’ respective contributions, as would be relevant to any property settlement order made following the final trial, were not dispositive of the interlocutory dispute over the injunctions sought by the applicant to restrain the respondent’s use of bank accounts held exclusively by her.
(f)the appellant’s age and his “physical and mental health conditions” (Ground 23), though how the applicant’s age and health were relevant to the success of his application for interlocutory injunctions was never explained.
Ground 12 alleges discretionary error of the converse type – by the primary judge wrongly taking an irrelevant factor into account. The ground alleges the primary judge “relied upon irrelevant and separate matters”, but such “matters” are not particularised by either the ground or the submissions made in support of it, so the ground must fail.
The submissions made in the applicant’s Summary of Argument, supposedly in support of Ground 12, actually repeat the assertions made within Grounds 2, 20, 21, 25 and 26 about the primary judge’s erroneous oversight of the applicant’s “evidences” and “significant financial contributions” in these terms:
12.The [Court] has failed to consider all evidences given by the [applicant] in his Affidavit dated 18.10.24 The [Court] has failed to consider significant Financial contributions made by the [applicant] during the cohabitation period with the [respondent]…
For clarity, it bears repeating the applicant’s affidavit filed on 18 October 2024 was not received and considered as “evidence” because it did not comply with procedural orders. The primary judge instead took the affidavit into account by according it the status of submissions (at [8]–[13]).
Manifestly unreasonable result
Absent any identifiable frank legal, factual or discretionary error, the applicant falls back on the proposition that the judgments reflected in the orders were manifestly unreasonable, pleading this in Grounds 1 and 13:
1.The [Court] has made a decision dated 25 October 2024 that is Legally irrational and cannot be Justified.
…
13.The Purported Decision of the [Court] dated 25 October 2024 is Legally unreasonable and illogical.
(As per the original)
The grounds are not supported by any submissions contained within the applicant’s Summary of Argument. They are rejected.
Incompetent grounds
Without intending any disrespect, Grounds 3, 5, 6, 7, 8, 11, 14 (excluding the complaints of bias and procedural unfairness), 15, 17 and 24 comprise grievances which are not competent grounds of appeal lying from discretionary judgments (House v The King (1936) 55 CLR 499 at 504–505).
They are pleaded as follows:
3.The [Court] has failed to refer and to conduct hearing on the subject matter regarding freezing of the [respondent’s] bank accounts mentioned in my "Application in a Proceeding" filed on 09.09.2024, during the full court hearing conducted on 25 October 2024, though this case of Financial dispute involves a huge amount of total pool of $532000 approx., out of which a significant amount of the [applicant] is controlled and held with the [respondent] in her possession.
…
5.The [Court] has continually referred and questioned the [applicant] about the language and numbering on the pages of the [applicant’s] Affidavit dated 18.10.2024, though the said Affidavit has already been well Accepted, Sealed and Filed by the Hon'able Court on 18.10.2024, about one (1) week before the "Interim Defended Hearing" dated 25.10.2024. Thus it is noted that almost all the scheduled time allotted for "Interim Defended Hearing" for doing needful regarding Freezing of Personal Bank Accounts of the [respondent], was utilized for questioning the [applicant] - unnecessarily for irrelevant / Separate matters and about the other previous Affidavits which were not at all relevant with "Interim Defended Hearing" dated 25.10.2024.
6.The [Court] has treated the [applicant] as a Respondent during the court hearing on 25.10.2024.
7.The [Court] has not referred and asked anything about freezing of the Bank accounts to the [respondent’s] Solicitor during the full Court hearing. The [Court] has even failed to freeze the outstanding balances as on 12.08.2024 in all the Personal Bank Accounts of the the [respondent] as requested by the [applicant] in his Affidavit and Submission dated 18.10.2024.
8.The [Court] has failed to ask any detail of total amount of funds earned as per her ITRs during the period Year 2019 - Year 2024 and present status of total amount of funds of the [respondent] held with her, in her possession, though she has continually been Transferring, Diverting and Controlling huge amount of hard earned funds of the [applicant] in her possession, as evident from the affidavit and submission submitted by the [applicant] on 18.10.2024.
…
11.The Purported Decision of the [Court] is not acceptable According to Law.
…
14.The Purported Decision of the [Court] dated 25 October 2024 is Misleading, Partial, Biased, Discriminating, Racism and Procedurally unfair.
15.This kind of ill-treatment with a poor vulnerable [international] Citizen like me held in the detention centre is not desirable from the [Court] (A Commonwealth Court of Australia).
…
17.The [Court] has just copied & pasted templated purported contents on their own opinion and not based on truth & facts of the [applicant’s] "Application in a Proceeding", while making decision on 25 October 2024. Thus the [Court] has relied upon the fake / false made-up story of the [respondent].
…
24.The [Court] has Pre-decided to dismiss my "Application in a Proceeding" filed by the [applicant] on 09.09.2024 and relied upon the purported / non‑evidentiary reasons given by the [respondent’s] solicitor, while making decision on 25 October 2024, rather considering number of favourable factors & evidences submitted by the [applicant] to the Court.
These incompetent grounds, which are not usefully elaborated by the applicant’s Summary of Argument, are not separately addressed. Suffice to say, the applicant bore the burden of demonstrating his entitlement to the injunctive relief he sought. The primary judge adequately explained why he failed to do so. It was not for his Honour to conduct an inquiry on his behalf (GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 at [19]–[20]).
Applications in an Appeal
The application for leave to appeal was heard without transcript, as the appeal registrar earlier granted the Application in an Appeal filed by the applicant on 8 January 2025, seeking relief from having to file the transcript of the proceedings below.
The applicant filed two other Applications in an Appeal which need to be addressed – one on 8 January 2025, seeking permission to issue subpoenas to three banks requiring production of bank account statements relating to the respondent, and the other on 10 January 2025, seeking to adduce further evidence in the appellate proceeding, with such evidence comprising the applicant’s two affidavits filed on 10 January 2025 and 10 February 2025.
Both applications are dismissed.
The first application is dismissed because to grant it would have entailed an unnecessary adjournment of the appeal hearing. Being in immigration detention and lacking resources, the applicant does not have the financial capacity to meet the respondent’s costs of the hearing thrown away today by an adjournment. The subpoenas the applicant now wants to issue relate to the same 11 accounts which were the subject of his interlocutory application before the primary judge. Assuming the subpoenas were issued and the documents later furnished in response thereto, the transactions recorded within the bank statements since the orders were made on 25 October 2024 could not advance the prospects of the applicant’s intended appeal.
The second application is dismissed because the “further evidence” is mostly not evidence at all. The text of the applicant’s two affidavits comprises only his beliefs and assertions – not statements or observations of fact. Numerous documents were annexed to both affidavits which can be addressed individually.
To the extent the applicant wants to adduce an audit of the respondent’s bank account statements, supposedly prepared by a chartered accountant, such evidence could have been elicited at first instance but was not, for which no satisfactory explanation is now advanced (CDJ v VAJ (1998) 197 CLR 172 at [55], [114], [116] and [186.9]). The provenance of the document was not established, but besides which the accountant could not now qualify as a single expert, the applicant could not establish why he should now be able to rely upon the accountant as an adversarial expert, and the evidence was liable to be controversial.
To the extent the applicant wants to rely upon the respondent’s original bank statements up until the hearing in October 2024, such documents could have been tendered at first instance. Even if the bank statements have come into the applicant’s possession since the original hearing, no explanation is offered for why they were not procured sooner.
The historical email dated 12 August 2022, sent by a lawyer to the applicant more than two years ago confirming the respondent’s refusal to cover the applicant’s legal fees, is of no relevance to the competency of this appellate proceeding.
Disposition
The application for leave to appeal is refused.
The respondent sought her party/party costs of this appeal proceeding on the basis the applicant was wholly unsuccessful. If properly advised, the Notice of Appeal would never have been filed. The respondent has incurred costs resisting it. The respondent sought $12,600, but I am not satisfied that is a fair estimate of party/party costs in this instance. The respondent made no useful submission over and above her Summary of Argument, which was succinct, and the appeal hearing was concluded within two hours. Costs are fixed at $5,000 under r 12.17(1)(a) of the Rules. As a material consideration, the applicant’s poor financial circumstances do not weigh as heavily as the unmeritorious proceedings he brought. The respondent agreed the costs would not need to be paid until the financial cause is finally determined.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 3 March 2025
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