Donalds & Donalds
[2021] FamCAFC 129
•8 July 2021
FAMILY COURT OF AUSTRALIA
Donalds & Donalds [2021] FamCAFC 129
Appeal from: Donalds & Donalds (No.3) [2021] FCCA 841 Appeal number(s): SOA 26 of 2021 File number(s): MLC 11505 of 2020 Judgment of: STRICKLAND J Date of judgment: 8 July 2021 Catchwords: FAMILY LAW – APPEAL – Where the appellant seeks to appeal orders dismissing her oral application for a stay of proceedings pending a determination of whether the Federal Circuit Court of Australia has jurisdiction to hear parenting matters – Where the appellant says that the Federal Circuit Court of Australia has no power to make parenting orders – Where the appellant made a Freedom of Information request to the Attorney General’s Department seeking to be provided with a document or documents establishing a “valid head of power” – Where the appellant was provided with a letter from the Attorney General’s Department advising that such a document or documents do not exist – Where the appellant misinterprets the letter to mean there is no valid head of power – Where s 51(xxii) of the Commonwealth Constitution provides power – Where the appellant’s appeal is incompetent and has no chance of success – Appeal dismissed. Legislation: Constitution Ch III, s 51(xxii)
Family Law Act 1975 (Cth) s 96AA
Division: Appeal Division Number of paragraphs: 18 Date of hearing: 8 July 2021 Place: Melbourne The Appellant: In Person by telephone link Solicitor for the Respondent: no appearance The Independent Children's Lawyer: Nicholes Family Lawyers Counsel for the Independent Children's Lawyer: Mr Turner ORDERS
SOA 26 of 2021
MLC 11505 of 2020APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS DONALDS
Appellant
AND: MR DONALDS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
STRICKLAND J
DATE OF ORDER:
8 JULY 2021
THE COURT ORDERS THAT:
1.The Notice of Appeal filed 29 April 2021 be 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Donalds & Donalds has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
This is a directions hearing in relation to a Notice of Appeal filed by the appellant mother on 29 April 2021, appealing from orders made by a judge of the Federal Circuit Court of Australia on 1 April 2021.
Although in her Notice of Appeal the appellant wife seeks to appeal against all orders made by her Honour on 1 April 2021, it seems to me, and it has been confirmed today, that the primary order, the subject of the appeal, is order 3, which provided:
3.The Mother’s oral application that the proceedings be stayed pending the determination of whether the Federal Circuit Court of Australia has jurisdiction to hear parenting matters be dismissed.
I also note at this stage that in the Notice of Appeal, the appellant has sought leave to appeal, but, has failed to provide any basis for leave to appeal to be granted. By that I mean, there are no facts set out in the Notice on which the appellant relies in support of the application for leave to appeal.
In any event, I query the need for leave to appeal, but, I do not propose to take that any further because I intend to concentrate on the Grounds of appeal contained in the Notice of Appeal. However, in short, although with due respect to the appellant, it is a little difficult to follow what the Grounds of appeal are, and what the asserted appellable error by her Honour is, because what we have under the heading of “Grounds of appeal” is a narrative of just over a page, rather than discrete and identifiable alleged appellable errors by the primary judge.
In attempting to understand the thrust of those Grounds of appeal, helpfully, in oral submissions today, the appellant has clarified the precise complaints that she has about the orders, but particularly order 3. In summary, the appellant asserts that the Federal Circuit Court of Australia has no power to make the parenting orders that her Honour made under the Family Law Act 1975 (Cth) (“the Act”). In that regard the appellant seems to rely on a document, being a letter from the Attorney‑General’s Department, which was sent to the appellant in response to the appellant’s Freedom of Information (“FOI”) request made earlier this year.
The letter from the Attorney-General’s Department is dated 15 January 2021, and I should indicate that the FOI request and the response from the Attorney-General’s Department are documents annexed to an affidavit of the appellant filed in the Court below on or about 31 March 2021, and that affidavit was before the primary judge on 1 April 2021.
One of the complaints by the appellant, as I understand it, is that the primary judge did not take into account the contents of the letter from the Attorney-General’s Department. The request made by the appellant under the FOI legislation was as follows. She requested access to:
…a copy of the document(s) establishing the valid head of power found within, and subject to, the Commonwealth of Australia Constitution Act 1900 (UK), to empower the Parliament to make laws with respect to the following subject matter ~ ‘Property and Financial Rights between persons who are or were living together as if they were husband and wife, Custody and Guardianship of children, and parental rights and the Maintenance of Children.
It seems that, what the appellant is referring to is, indeed, primarily section 51(xxii) of the Commonwealth of Australia Constitution Act (“Commonwealth Constitution”) which provides that the Parliament has:
…power to make laws for the peace, order, and good government of the Commonwealth with respect to:…
…divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants;
In any event, the issue for the appellant, as I understand, is whether there is a valid head of power, and that was the purport of her request under FOI, namely, to be provided with “document(s) establishing the valid head of power”, for the purposes of the Commonwealth Constitution.
The response by the Attorney-General’s Department was not as the appellant has submitted today, namely, that there is no head of power. The response was that there was no document as sought by the appellant. That is quite a different thing than alleging, as the appellant does, that the Attorney-General’s Department is saying that there is no head of power. It seems that misconception by the appellant has led her to the submissions that she made before her Honour, and before this Court today. She says that there is no head of power, and, as such, there is no authority to proceed, and no power in the Federal Circuit Court of Australia to make orders pursuant to the Act.
I pause there to indicate that in her submissions today, the appellant has requested that I indicate my oath of allegiance, and unless she is satisfied that there is a valid oath of allegiance, this Court, namely, the Appeal Court, has no power over her or her children. However, I am not prepared to indulge the appellant in relation to that. I am a sitting judge of the Family Court of Australia. I am a senior judge of that Court, as well as the senior judge of the Appeal Division of the Family Court of Australia, and I am the administrative head of that division. As such, I do not propose to indulge the appellant by referring at all to my oath of allegiance, which I took at the time that I was appointed a judge of this Court.
To repeat, the appeal brought by the appellant and the submission made today stem from the letter from the Attorney-General’s Department which, also to repeat, does not say what the appellant suggests it does, namely, that there is no head of power. Her Honour dealt with this issue succinctly and appropriately in her reasons for judgment delivered on 1 April 2021, and there is no error there.
In short, her Honour refers to the Commonwealth Constitution which her Honour says makes it abundantly clear that the Parliament has power to make laws in relation to a number of matters, and specifically divorce and matrimonial causes and in relation thereto, parental rights, and the custody and guardianship of infants. Her Honour, also indicated, in my view quite correctly, that the Court does have the power to make orders pursuant to the Act and in paragraph 3, her Honour says this:
It is also abundantly clear that the Commonwealth Government has power to set up Federal Courts, of which this is one, and to set out what powers that Court has, which they have done also in the Family Law Act.
On that basis, her Honour dismissed the oral application of the appellant to stay the proceedings for want of jurisdiction.
Thus, to not put too fine a point on this, the so-called Grounds of appeal and the submissions made today in support of those Grounds of appeal are nonsense. This is an incompetent appeal. It should never have been brought. Indeed it should never have been received, and it is a waste of this Court’s time and the taxpayer’s money to have to deal with it in open Court today. The fact of the matter is that under the Commonwealth Constitution, the Australian Parliament has, and I am quoting section 51(xxii):
…power to make laws for the peace, order, and good government of the Commonwealth with respect to:…
…divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants;
The Parliament has exercised that power, specifically, in the context of this matter, by passing the Act.
Further, the Parliament of Australia has validly set up the Federal Circuit Court of Australia as a Chapter III Court, and to suggest otherwise, to use a word that I have used already, is nonsense.
The final matter that I wish to address is, that again, gleaning what I can from the so-called Grounds of appeal, the appellant seems to suggest that once jurisdiction is challenged, then the onus is on the Court to prove that it has jurisdiction, and until or unless that is done, the proceeding should cease. However, that is not a correct statement of the principle. Certainly, where there is a valid challenge to jurisdiction, then the Court would need to deal with it, even in those circumstances, but not by the Court proving it has jurisdiction, rather by the person who challenges the jurisdiction establishing that. Clearly, in those circumstances, the Court would not continue with the proceedings that are then on foot, until or unless that challenge is dealt with.
But, to repeat, I add the word “valid” challenge. This alleged challenge to the jurisdiction of the Court is not a valid challenge. To repeat again, it is nonsense, and, as such, there is no basis for this Court, or the lower Court to cease conducting the proceedings before it, and her Honour was quite correct in making the order that she did.
Having dealt with the issues that are raised, both in the Notice of Appeal and the submissions today, in my view, there is no chance of success in this appeal if it was allowed to proceed. Under section 96AA of the Act, this Court is able to dismiss an appeal where the Grounds of appeal do not reveal that there will be a reasonable chance of success. Now, that is certainly the case but I go further and indicate that there is no chance of success because, as I have said, and I repeat, this is an incompetent appeal. It must be dismissed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strickland. Associate:
Dated: 27 July 2021
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