Charton & Sedgley
[2023] FedCFamC1A 205
•23 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Charton & Sedgley [2023] FedCFamC1A 205
Appeal from: Sedgley & Charton [2023] FedCFamC2F 1399 Appeal number: NAA 294 of 2023 File number: SYC 4446 of 2020 Judgment of: AUSTIN J Date of judgment: 23 November 2023 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Practice and Procedure – Where the primary judge dismissed the applicant’s application to discharge an order prohibiting the parties from cross-examining one another at the final hearing – Where the applicant could not show cause why the application for leave to appeal should not be summarily dismissed – Where appeals only lie from judgments – Where the subject order was no more than a procedural ruling – Where the order does not impugn any legal right enjoyed by the applicant – Application dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) Pt VII and Pt VIII, s 102NA and s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32 and 46
Cases cited: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 674; [2023] HCA 26
Darley (No 2) [2023] FedCFamC1A 112
Number of paragraphs: 23 Date of hearing: 22 November 2023 Place: Sydney (via Microsoft Teams) The Applicant: Litigant in person Counsel for the Respondent: Mr MacPherson Solicitor for the Respondent: Bridges Lawyers Solicitor for the Independent Children's Lawyer: Legal Aid NSW Sydney Central Family Law ORDERS
NAA 294 of 2023
SYC 4446 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR CHARTON
Applicant
AND: MS SEDGLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
23 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application for leave to appeal is refused and the Notice of Appeal filed on 27 October 2023 is dismissed.
2.The Application in an Appeal filed on 27 October 2023 is dismissed.
3.The respondent’s application for costs 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 Charton & Sedgley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
This appeal, subject to the grant of leave to bring it, lies from an order made on 26 October 2023 by a judge of the Federal Circuit and Family Court of Australia (Division 2).
The relevant order embodied her Honour’s dismissal of the applicant’s application to discharge an order formerly made under s 102NA of the Family Law Act 1975 (Cth) (“the Act”), which precludes the parties from cross-examining one another in person at the trial of their parenting and financial causes.
The application for leave to appeal was listed on 22 November 2023 for the applicant to show cause why it should not be summarily dismissed for two reasons: first, the appeal was futile if the trial had already been heard with the s 102NA order in force (as it was expected to be); and secondly, the intended appeal is otherwise incompetent and has no reasonable prospects of success.
Background
The parties are engaged in litigation related to their children and their property under Pt VII and Pt VIII of the Act respectively.
On 22 August 2022, an order was made under s 102NA of the Act in these terms, precluding the parties’ personal cross-examination of one another:
4.The requirements of Section 102NA(2) of the Family Law Act 1975 will apply to any cross examination occurring in the proceedings at final hearing.
(As per the original)
Apparently, the lawyers appointed to represent the applicant pursuant to a grant of State legal aid gave notice of their withdrawal on or about 12 September 2023 – just under two months before the trial was scheduled to start in early November 2023.
As a consequence, the Independent Children’s Lawyer took steps to re-list the matter before the primary judge to address the problem posed by the existence of the s 102NA order and the applicant’s lack of legal representation.
The proceedings were re-listed on 26 October 2023, at which time the primary judge made orders in these terms after having heard from the parties:
1.Leave is granted to the Respondent to make an oral application today to discharge the s 102NA orders of 22 August 2022.
2.The Respondent’s oral application to discharge the s 102NA orders of 22 August 2022 is refused.
The next day, the applicant appealed from the dismissal order and, contemporaneously, filed an Application in an Appeal seeking an order in these terms:
1.Have the 102NA order against me dismissed.
(As per the original)
The applicant was thereby seeking the same relief on an interlocutory basis, the grant of which could only follow upon the successful prosecution of his intended appeal and the favourable re-exercise of discretion.
The trial of the underlying causes of action was scheduled to commence on 9 November 2023, but was adjourned. The applicant is still self-represented.
Disposition
The intended appeal would have been entirely moot if the trial had already been heard, as the order made under s 102NA of the Act would have been executed and of no further operative effect. There would no longer have been any justiciable controversy over the existence of the order and hence no jurisdiction to entertain the appeal in relation to it (AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 674).
That impediment now falls away due to the adjournment of the trial, but the application for leave to appeal should still be dismissed as the dismissal order made by the primary judge is not a “judgment” from which any appeal lies. The dismissal of the applicant’s application to discharge the s 102NA order did not impugn any legal right enjoyed by the applicant (Darley (No 2) [2023] FedCFamC1A 112).
As was said by the Full Court in that case:
16.Appeals only lie from “judgments” (s 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)), which are “operative judicial acts” resolving the entire justiciable dispute or at least determining the parties’ rights in some more limited way (Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64).
17.Judgments do not include rulings on points of law, evidence or procedure which incidentally arise during the proceedings when such rulings are not decisive of legal rights (Commonwealth v Mullane (1961) 106 CLR 166 at 169; Yule v Junek (1978) 139 CLR 1 at 14, 18, 21 and 26).
18.The decision made by the primary judge on 26 May 2023 to invoke s 102NA(2) of the Act and thereby prohibit the parties’ from cross-examining one another in person was no more than a procedural ruling about the manner in which the upcoming trial will be conducted. The ruling, albeit styled as an order, did not determine any right enjoyed by the applicant.
19.The applicant apparently wants to cross-examine the father in person but, aside from her desire, she has no right to do so. The applicant only has a right to a fair trial, which right is not lost by denying her the chance to personally cross-examine the father (Naparus &Frankham (2020) FLC 93-943 at [16]–[21]) (“Naparus & Frankam”). The invocation of s 102NA(2) of the Act means the applicant enjoys an automatic entitlement to legal representation at trial under the State legal aid scheme, so her appointed lawyer will cross-examine the father. Objectively, she loses nothing by the ruling.
Although Darley (No 2) concerned an order invoking s 102NA of the Act, the observations made by the Full Court apply just as appositely to this order refusing an application to discharge an existent order made under s 102NA of the Act.
That proposition was put to the applicant for his response, but he could not meet it. The legal inability to challenge the order by an appeal means the application for leave to appeal should be summarily dismissed but, lest the applicant feel as though his submissions were not heard and considered, it is worthwhile explaining their rejection.
The applicant’s submissions were directed exclusively to his perception of the unfairness of the primary judge’s decision, though his submissions did not necessarily correlate with the four proposed grounds of appeal. As articulated in submissions, the applicant’s grievances with the dismissal order were confined to him being given insufficient time within which to prepare for the presentation of his discharge application and, as a consequence, he was unable to furnish the primary judge with all the necessary evidence to make a correct decision. However, neither submission helps bolster his proposed appeal.
Despite the applicant’s submission to the contrary, the primary judge was well aware that the State family violence order earlier made against him had been discharged (at [11], [14] and [18]). Even though the applicant asserted his acquittal on the allied personal violence charges with which he was prosecuted, he acknowledged how the primary judge correctly told him the acquittal would not preclude findings later being made in these civil proceedings, on the balance of probabilities, that he had perpetrated family violence against the respondent. The civil standard of proof is lower than the criminal standard of proof. The applicant’s acquittal simply means his alleged guilt could not be proven beyond reasonable doubt. It was not tantamount to his exoneration for innocence. Of course, no findings in respect of the parties’ incompatible evidence can be made in the civil proceedings under the Act until their evidence is tested at trial.
The applicant’s claim that he had only 10 minutes preparation time is, in effect, a claim of his denial of procedural fairness. But he need not have made the discharge application at all. He was not forced to do so. He could have left the s 102NA order in place undisturbed, but he did not want that. He had no obligation to prosecute the application on 10 minutes notice, but he elected to do so, regardless of the shortness of preparation time. As the primary judge noted in the reasons (at [10]), the applicant informed the Court of his desire to make the oral application, he was granted leave to make it (Order 1), and the application was then heard and dismissed (Order 2). The principles of procedural fairness are applied practically, not in some abstract way. The applicant made his submissions, they were heard, but they were rejected.
The evidence the applicant said he would prefer to have adduced in support of the application would not have helped. He said such evidence comprised a transcript of the proceedings before the State court, which he believed would prove the respondent’s unreliability as a witness. Supposing for the moment the evidence could unconditionally demonstrate such a proposition, it would not have vindicated his application to discharge the s 102NA order. The primary judge proceeded on the uncontentious premise that the parties made allegations against one another of serious family violence, which each denied (at [11] and [21]), and the respondent professed continuing “significant concern for her safety” (at [14]–[15]). Her Honour was satisfied the heightened antipathy between the parties militated against the discharge of the s 102NA order (at [22]). Such uncontentious facts were a valid foundation for an orthodox exercise of discretion, irrespective of the applicant’s confidence in being able to establish the respondent’s mendacity.
The additional claim of bias (within proposed Ground 4) is misconceived. The ground alleges bias because of the primary judge’s failure to take some administrative step in early 2022, some 18 months before his application to discharge the s 102NA order was heard in October 2023. Yet, in oral submissions, when that anomaly was identified, the applicant alleged he made submissions to the primary judge at the hearing in October 2023 about bias. Without the transcript it is impossible to know what assertion of bias the applicant then made, but it is difficult to accept he made an application for the primary judge’s disqualification due to alleged bias because it does not accord with incontrovertible facts. First, the primary judge made no order separately dismissing any disqualification application made by the applicant, most probably because none was made. Had such an application been made, her Honour would have been obliged to make an order either granting or refusing the application. Secondly, the applicant undoubtedly prosecuted his application to discharge the s 102NA order, which he wanted the primary judge to hear and grant, so he did not really want her Honour disqualified from any further participation in the proceedings on account of actual or ostensible bias at all. Finally, her Honour’s rejection of the application to discharge the s 102NA order is no proper basis for a retrospective claim of bias to now be made in the intended appeal.
The application for leave to appeal is dismissed, as is the accompanying Application in an Appeal, which orders are empowered by ss 32(3)(b), 32(5) and 46(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
The respondent sought costs of $5,365 against the applicant, which oral application is refused. The application for leave to appeal was listed at the Court’s own motion to hear the applicant on the question of summary dismissal. So far, the respondent has not needed to do anything in the appeal aside from read the Notice of Appeal, the Application in an Appeal, and the short supporting affidavit. The summary dismissal hearing was concluded within an hour. When pressed, the respondent’s counsel commendably conceded he could not invoke any provision of s 117(2A) of the Act to justify the costs order.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 23 November 2023
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