Earl & Wehausen
[2023] FedCFamC1A 64
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Earl & Wehausen [2023] FedCFamC1A 64
Appeal from: Wehausen & Earl [2023] FedCFamC1F 239 Appeal number: NAA 91 of 2023 File number: ADC 3873 of 2020 Judgment of: AUSTIN J Date of judgment: 9 May 2023 Catchwords: FAMILY LAW – APPEAL – Practice and procedure – Where the appellant was invited to show cause why the appeal should not be summarily dismissed – Where there appellant failed to appear – Where the appealed orders do not constitute a judgment from which an appeal competently lies – Consideration of Faldyn & Badenoch [2022] FedCFamC1A 170 – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4, 7, 26
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32, 36
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Faldyn & Badenoch [2022] FedCFamC1A 170
Fierro & Fierro [2022] FedCFamC1A 72
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Number of paragraphs: 11 Date of hearing: 9 May 2023 Place: Newcastle (via video link) The Appellant: Litigant in person (did not participate) Counsel for the Respondent: Ms Smith Solicitor for the Respondent: Picotti-Ellis Legal Solicitor for the Independent Children's Lawyer: L.G. Lawyers ORDERS
NAA 91 of 2023
ADC 3873 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR EARL
Appellant
AND: MS WEHAUSEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
AUSTIN J
DATE OF ORDER:
9 May 2023
THE COURT ORDERS THAT:
1.The Notice of Appeal filed on 12 April 2023 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 a pseudonym Earl & Wehausen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
The parties to this appeal are engaged in a parenting dispute under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of their daughter. The proceedings were commenced in August 2020 and will soon be listed for trial.
On 15 March 2023, the primary judge made these orders:
1.That the Response to Final Orders filed by the Father on 28 March 2021 be dismissed.
2.That the proceedings are listed for trial on an undefended basis on a date to be fixed.
3.That no later than 4.00pm on 31 March 2023 each the Mother and the Independent Children's Lawyer do file and serve any Affidavit upon which they intend to rely for trial purposes.
4.That no later than 4.00pm on 14 April 2023 the Independent Children's Lawyer and the Mother do file and serve a Case Outline Document, with such Case Outline Document to include the following…
The father filed a Notice of Appeal on 12 April 2023, purporting to appeal from those orders.
The appeal was listed today (9 May 2023) for the father to show cause why the appeal should not be summarily dismissed, but he failed to appear, either in person or by legal representative, to accomplish that task. The father filed a Notice of Address for Service on 4 May 2023, indicating that the retainer of his former solicitors has been terminated.
In Faldyn & Badenoch [2022] FedCFamC1A 170, it was observed:
9.Under the provisions of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”), appeals only lie from “judgments” (s 26(1)).
10. The FCFCA Act defines a “judgment” as follows (s 7(1)):
"judgment" means a judgment, decree or order, whether final or interlocutory, a decision or a sentence, and includes a decree within the meaning of the Family Law Act 1975.
11.Prior to 1 September 2021, when appeals were governed by the now repealed Pt X of the Act, appeals were brought from a “decree”, which was defined as follows (s 4(1)):
“decree” means decree, judgment or order and includes:
(a) an order dismissing an application; or
(b) a refusal to make a decree or order.
12.The commonality between the definitions is obvious, but there are differences. Specifically for present purposes, a “judgment” includes a “decision”, whereas a “decree” did not.
13.However, the amendment providing for appeals to be now brought from judgments instead of decrees should not be thought to represent an intended expansion of appellate jurisdiction over any “decision” made in the exercise of original jurisdiction. The Explanatory Memorandum presaging the Federal Circuit and Family Court of Australia Bill 2019 (Cth) said this about the clause which subsequently became s 26 of the FCFCA Act, strongly emphasising the lack of any Parliamentary intention to change the existing ambit of appellate jurisdiction:
89.This clause reflects the retention of the existing Family Court’s appellate jurisdiction in the FCFC (Division 1).
14.Without the FCFCA Act expressly saying otherwise, there is no room to impute any intention by the Parliament to overrule decades of jurisprudence emanating from the High Court of Australia about the constricted meaning of “judgment”. No such express intention is evident within the legislation, particularly given the provisions of the Explanatory Memorandum.
15.The inclusion of the word “decision” cannot rationally broaden the definition of “judgment” to such width that it covers any decision on any issue within the litigation – whether substantive, procedural or administrative – so as to qualify it as a judgment from which an appeal lies, either as of right or subject to the grant of leave to appeal. Rather, the word “decision” should be read commensurately with the other forms of defined judgment covering only judicial decisions which are in some way decisive of litigants’ rights, even if only on an interim basis.
16.As was pointed out in Fierro & Fierro (at [15]):
15.The High Court has stated that a “judgment” from which an appeal lies is the “operative judicial act” embodied in the court’s orders which resolve the justiciable dispute (Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64). Importantly, a “judgment” does not include rulings on points of law or answers to questions of law which arise during the proceedings, when those rulings or answers are not decisive of the parties’ rights. Nor are rulings converted to “judgments” simply by expressing them in the form or language of orders (Commonwealth v Mullane (1961) 106 CLR 166 at 169; Yule v Junek (1978) 139 CLR 1 per Mason J at 14, Jacobs J at 18, Murphy J at 21, and Aickin J at 26).
Similarly in this instance, the orders which are the subject of this appeal do not constitute a “judgment” from which an appeal competently lies.
Order 1, while styled as a dismissal order, is actually a procedural ruling which prevents the father from prosecuting any particular suite of orders at the trial, which ruling her Honour said was made due to the father’s “ongoing default” of procedural orders and other obligations imposed upon him by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), together with his failure to prosecute his case with due diligence (at [4]–[6]). The order does not dismiss the cause of action between the parties.
Order 2 is a procedural direction. The proceedings are yet to be fixed for trial. While this order asserts the trial will be conducted on an “undefended” basis, the description is liable to mislead. Her Honour observed in the reasons published for the orders that the trial will entail a hearing without evidence from the father, though he will still be permitted to cross-examine witnesses (at [5]) and, by extension, be able to make submissions about the orders which should be made under Pt VII of the Act to promote the child’s best interests.
Orders 3 and 4 are procedural directions to ensure the readiness of the upcoming trial.
The corollary of the procedural orders is that there is not yet any “judgment” determining the parties’ rights under Pt VII of the Act. Any appeal will only lie from the judgment eventually pronounced to determine the cause under Pt VII of the Act. It is possible, though not certain, that any such appeal might be premised upon the effect of these interlocutory orders (s 36(5) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”); (Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 482-484 and 494-497).
For the moment though, there is no competent appeal and the Notice of Appeal filed on 12 April 2023 is summarily dismissed. The power to do so is vested in a single judge exercising appellate jurisdiction (ss 32(3)(b) and 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: 9 May 2023
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