Earl & Wehausen

Case [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 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

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 JUDGMENT

AUSTIN J:

  1. 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.

  2. 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…

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Earl & Wehausen [2023] FedCFamC1A 64
Case
[2023] FedCFamC1A 64
Decision Date

CaseChat Overview and Summary

In the case of Earl & Wehausen, the matter before the Federal Circuit and Family Court of Australia involved the interpretation of the term "judgment" as defined under the Federal Circuit and Family Court of Australia Act 2021. The court had to determine whether a particular decision made during the proceedings could be considered an appealable judgment. The decision of the court was influenced by the legislative history and the High Court’s interpretation of the term "judgment" as an "operative judicial act" that resolves a justiciable dispute. The court examined the definition of "judgment" in the Act and compared it with the previous definition of "decree" under the repealed legislation.

The legal issue before the court was to ascertain whether the inclusion of the word "decision" in the definition of "judgment" under the FCFCA Act expanded the scope of appealable judgments to include any decision made in the exercise of the court's original jurisdiction. The court had to interpret whether this inclusion was intended to cover any decision on any issue within the litigation, or whether it was limited to decisions that are decisive of litigants' rights. This interpretation was crucial in determining the extent of the appellate jurisdiction under the new Act and whether it aligned with the High Court's established jurisprudence on the constricted meaning of "judgment."

The court concluded that the amendment to the definition of "judgment" should not be interpreted as an expansion of appellate jurisdiction over any decision made in the exercise of original jurisdiction. The court relied on the Explanatory Memorandum to the Federal Circuit and Family Court of Australia Bill 2019, which emphasised that there was no intention to change the existing ambit of appellate jurisdiction. The term "decision" was to be read in a manner consistent with the other forms of defined judgment, covering only judicial decisions which are decisive of litigants' rights, even if on an interim basis. The court found that the term "judgment" did not include rulings on points of law or answers to questions of law that are not decisive of the parties' rights, nor were such rulings converted to judgments by being expressed in the form or language of orders.

The court's decision clarified that the inclusion of the word "decision" in the definition of "judgment" did not broaden the scope of appealable judgments to encompass any decision made in the litigation. Instead, it maintained the narrow interpretation of "judgment" as established by the High Court, focusing on decisions that are decisive of the litigants' rights. The decision underscored the importance of legislative intent as expressed in the Explanatory Memorandum and aligned the interpretation of "judgment" with the High Court's jurisprudence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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).

Ratio Decidendi

Legal Principle Established

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