Donalds & Donalds (No. 2)
[2021] FamCAFC 163
•17 August 2021
FAMILY COURT OF AUSTRALIA
Donalds & Donalds (No. 2) [2021] FamCAFC 163
Appeal from: Donalds & Donalds (No 4) [2021] FCCA 1618 Appeal number(s): SOA 41 of 2021 File number(s): MLC 11505 of 2020 Judgment of: STRICKLAND J Date of judgment: 17 August 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the time to be spent between the father and the children is a prime matter for determination in the upcoming final hearing in relation to all parenting issues – Where even if the appeal was allowed to proceed it could not be heard and determined before the conclusion of the final hearing – Where there is no utility in allowing the appeal to proceed – Where in any event the appeal is incompetent and cannot succeed – Appeal dismissed. Cases cited: Donalds & Donalds [2021] FamCAFC 129 Division: Appeal Division Number of paragraphs: 17 Date of hearing: 17 August 2021 Place: Melbourne by telephone link to Adelaide The Appellant: Self represented Solicitor for the Respondent: Joseph David Lawyers Counsel for the Independent Children’s Lawyer: Mr Turner Solicitor for the Independent Children's Lawyer: Nicholes Family Lawyers ORDERS
SOA 41 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:
17 AUGUST 2021
THE COURT ORDERS THAT:
1.The Amended Notice of Appeal filed on 30 July 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 an appeal against an order providing for the child Y, born in 2021, to spend time with Mr Donalds (“the father”), and against an order that costs be reserved.
It is not an appeal against the orders providing for relocation; the issue of relocation is the subject of earlier orders, and the appeal against those orders has been dismissed.
Thus, the issue raised by Ms Donalds (“the mother”), namely whether if this appeal is dismissed that may lead to a warrant being issued to enforce the relocation orders simply does not arise, it is not relevant, and cannot be taken into account in relation to this appeal.
That said, I propose to dismiss this appeal, and the primary reason for that, is that it lacks utility, or to put it another way, it is futile. It is futile because the substantive hearing in relation to the parenting issues is now listed to commence before a judge of the Family Court of Australia on 24 August 2021, with four days set aside, and then a further four days set aside in September 2021.
One of the orders the subject of this appeal, to repeat, is an order that the child Y spend time with the father. However, the issue of the time to be spent between the father and the children, including Y, is a prime matter for determination by the judge hearing the substantive proceedings. Thus, given the closeness of the final hearing in relation to all parenting issues, it is of no utility whatsoever to allow the appeal to proceed against the orders that I have just identified.
I add to those comments by adverting to this timing. Even if the appeal was allowed to proceed, it could not be listed for hearing until late September/early October 2021, and by then of course, on current indications, the trial before the primary judge will have concluded.
Further, following the hearing of the appeal, it is likely that there would be a reserved judgment, and such judgment might take as long as two or three months to be delivered, and by then the final hearing would well and truly be concluded.
And then, of course, if the appeal was successful, the only option for the appeal judge would be to remit the proceedings for rehearing. Now, there would be absolutely no point in doing that, given that all parenting issues, including the time that Y is to spend with the father, would have been the subject of evidence and determination by her Honour in the context of the substantive proceedings.
Thus, I confirm that there is no utility in this appeal proceeding, and I propose to dismiss it for that reason.
I have indicated earlier, and I confirm now, that in any event, the appeal and the grounds of appeal are incompetent.
The first thing to note in the Amended Notice of Appeal filed on 30 July 2021, is that, for some reason, leave to appeal is sought. That is not required, given that the appeal is against a parenting order. Fortuitously, there are no facts put in the Notice of Appeal in support of leave to appeal, so I am perplexed as to why the mother has sought leave to appeal, but, as it turns out, it is not relevant in any event.
Turning to the grounds of appeal, there are eight pages comprising a mixture of narrative and arguments, interspersed with alleged errors by the primary judge.
The first ground of appeal relates to the jurisdiction of the court to make the orders the subject of the appeal. That is a matter which has been dealt with already by judgment delivered by this Court on 8 July 2021 (see Donalds & Donalds [2021] FamCAFC 129), and there is no basis whatsoever for that as a ground of appeal. It is nonsense.
Then there is a further eight pages of narrative and arguments, but it is patently obvious that the majority, if not all of that narrative, and those arguments, are directed to earlier orders, including in particular the issue of relocation.
To repeat, this is not an appeal against the earlier orders. It is not an appeal against the orders for relocation; it is an appeal against discrete orders made for time to be spent by Y with his father, and for costs.
It is difficult in the extreme, even on the closest reading of the eight pages of narrative, to find any complaint or error alleged in relation to those two orders the subject of the appeal.
Thus, even if the appeal had any utility, to repeat, in my view, the appeal is incompetent. The grounds of appeal are incompetent, and it is completely inappropriate to allow such an appeal to proceed. It cannot succeed. Not only does it have no reasonable prospect of success, it has no prospect, and thus it would be a waste of everyone’s time, resources and, presumably, costs, to allow this appeal to proceed, either because it has some utility or because it has some competence. But, to repeat, neither is the case.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strickland. Associate:
Dated: 25 August 2021
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