Charton & Sedgley (No 2)

[2024] FedCFamC1A 76

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Charton & Sedgley (No 2) [2024] FedCFamC1A 76

Appeal from:

Order dated 17 April 2024

Appeal number:

NAA 93 of 2024

File number:

SYC 4446 of 2020

Judgment of:

AUSTIN J

Date of judgment:

7 May 2024

Catchwords:

FAMILY LAW – APPEAL – Practice and Procedure – Summary dismissal – Where the father appeals from procedural orders made to facilitate progression of the proceedings to trial – Where none of the appealed orders comprises a judgment from which an appeal validly lies – Where the solitary ground of appeal does not disclose any recognisable appealable error – Where the appeal has no reasonable prospect of success – Appeal summarily dismissed.

Legislation:

Family Law Act 1975 (Cth) Pt VII

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26, 32, 46

Cases cited:

Charton & Sedgley [2023] FedCFamC1A 205

Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91

Number of paragraphs:

11

Date of hearing:

7 May 2024

Place:

Newcastle (via Microsoft Teams

Counsel for 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 93 of 2024
SYC 4446 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR CHARTON

Applicant

AND:

MS SEDGLEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	7 MAY 2024

THE COURT ORDERS THAT:

1.The Notice of Appeal filed on 19 April 2024 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. The parties and the Independent Children’s Lawyer (“the ICL”) are engaged in litigation under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) before the Federal Circuit and Family Court of Australia (Division 1) in respect of the parties’ two children.

2. On 17 April 2024, the primary judge made a series of procedural orders to facilitate progression of the proceedings to trial, which is apparently set down in August 2024.

3. His Honour appointed two single expert witnesses (Orders 1 and 4), ordered the parties to attend consultations with the experts (Orders 2 and 5), restrained the parties from conferring with the experts without the consent of the other and the ICL (Order 13), prescribed the ambit of the experts’ roles (Orders 3, 6 and 12), directed the parties to meet the experts’ fees (Orders 7 and 8), and made supplementary procedural directions (Orders 9, 10, 11 and 14).

4. On 19 April 2024, the father filed a Notice of Appeal seeking leave to appeal from all of those orders.

5. The application for leave to appeal was listed before the Court on 7 May 2024 to give the father the opportunity to submit why the application should not be summarily dismissed on account of it having no reasonable prospects of success, which feat the father was unable to accomplish.

6. The application for leave to appeal should be dismissed for two reasons: first, none of the appealed orders comprises a “judgment” from which an appeal validly lies (s 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)); and secondly, the solitary ground of appeal does not disclose any recognisable appealable error.

7. Judgments 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). None of the appealed orders meet that description. None of the orders impinge the father’s legal rights. He had no legal right to demand or refuse the appointment of single experts, nor to dictate the identity of the appointed single experts. The orders were entirely procedural in nature.

8. These concepts are not foreign to the father as they were discussed when a former application for leave to appeal, brought by him from other orders made in October 2023, was summarily dismissed (Charton & Sedgley [2023] FedCFamC1A 205 at [14]–[16]).

9. Even if an appeal did validly lie from one or more of the orders, subject to the grant of leave to bring it, the Notice of Appeal does not plead any competent ground of appeal. The solitary ground of appeal, which does not identify any appealable error, is stated as follows:

   1.[The primary judge] had already made his discission prior to the hearing on 17 April 2024. I am a recognised [health professional] and [public servant] and my evidence was not given the due consideration that my experience, expertise and evidence is usually afforded in the various duristications in Australia. [The primary judge] relied of incomplete and factually incorrect information provided to him by the ICL ([name]) and the [mother’s] legal representation, I was not afforded the opportunity to provide evidence that is currently being relied on in other current family court of Australia matter in respects to trauma, mental health of mothers and it’s projection onto their children and the ICL didn’t raise the complex Posttraumatic Disorder that [the mother] suffers from due to being both physically and emotionally abused from birth to eight years old by her biological father which her legal representation stated is now effecting her parenting of our [children]. [N]o previous or current family court judge has used Section 60B of the [F]amily [L]aw Act 1975 in relation to my boys in this matter.

   (As per the original)

10. Almost exactly the same narrative is recited within the Notice of Appeal as being the facts and circumstances to justify leave being granted for the appeal to be brought.

11. The father has no reasonable prospect of successfully prosecuting the appeal before the Full Court, in which event the application for leave to bring it is summarily dismissed (s 46(2) of the FCFCA Act), which order a single judge exercising appellate jurisdiction is empowered to make (s 32(3) and s 32(5) of the FCFCA Act).

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       8 May 2024