Elliott & Hopkins

[2023] FedCFamC1A 49

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Elliott & Hopkins [2023] FedCFamC1A 49  

Appeal from:	Hopkins & Elliott [2023] FedCFamC1F 167
Appeal number(s):	NAA 83 of 2023
File number(s):	SYC 5636 of 2021
Judgment of:	ALDRIDGE J
Date of judgment:	17 April 2023
Catchwords:	FAMILY LAW – APPEAL – Where the appeal was listed by the appeal judicial registrar for consideration of whether or not the appeal should be summarily dismissed – Appeal against orders granting sole occupation of a property to the respondent – Where the matters raised by the appellant at the hearing were not contained in the Notice of Appeal – Orders striking out the grounds of appeal in the Notice of Appeal and orders made for the appellant to file an Amended Notice of Appeal.
Number of paragraphs:	15
Date of hearing:	17 April 2023
Place:	Sydney
The Appellant:	Litigant in person
Solicitor for the Respondent:	Parker Law

ORDERS

NAA 83 of 2023
SYC 5636 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS ELLIOTT

Appellant

AND:

MR HOPKINS

Respondent

order made by:	ALDRIDGE J
DATE OF ORDER:	17 april 2023

THE COURT ORDERS THAT:

1.The grounds of appeal contained in the Notice of Appeal filed on 5 April 2023 are struck out.

2.The appellant is granted leave to file an Amended Notice of Appeal within 14 days.

3.This consideration of the appeal will be adjourned for further hearing until 5 May 2023 at 10.00 am.

4.Costs are reserved.

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 the pseudonym Elliott & Hopkins has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

ALDRIDGE J:

1. The appeal has been listed by the appeal judicial registrar for consideration of whether or not the appeal should be summarily dismissed as being fundamentally misconceived. The appeal is against orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) that granted sole occupation of a particular property (in which the appellant currently lives) to the respondent.

2. There are but two grounds of appeal which provide:

   1.The judge erred in believing that there was an application before him when in fact it had been withdrawn by consent before [the registrar] on 31 January 2023;

   2.The [appellant] was denied procedural fairness when the application which had been withdrawn was heard, without being given notice to prepare for the hearing, when she was unrepresented.

3. It is true indeed that there was an application for sole occupation of the property before the registrar on 31 January 2023 and the respondent indicated that that application was not being proceeded with. Consequently the registrar made an order whereby the registrar themselves withdrew the claim for the relevant interlocutory orders. The claim was not therefore dismissed and the status of an application that is merely withdrawn is open to some speculation.

4. However, more importantly, the appellant filed an application of review of the orders of the registrar on 7 February 2023 and by which she sought the review of Orders 2–18. That included the orders withdrawing the claims for exclusive occupation.

5. Therefore all matters that had been determined by Orders 2–18, including the claim for exclusive occupation of a property, came on for hearing before the primary judge. It is apparent from his Honour’s reasons that there was a considerable dispute on the day of the review application before him as to whether or not there should be an order for exclusive occupation, which his Honour ultimately made.  

6. It is apparent therefore from the forgoing that the application for exclusive occupation was properly before the primary judge and that Grounds 1 and 2 must fail.

7. When these matters were raised with the appellant today she indicated that her real difficulty was not with the fact that his Honour dealt with the application, but that his Honour erred in making it. None of those grounds or proposed grounds is in the Notice of Appeal or any proposed Notice of Appeal and there is force in the submissions made on behalf of the respondent that there has been time for consideration of whether the Notice of Appeal should be amended.

8. I note that in that regard, that until shortly before I came on the bench this afternoon, the appellant was represented by solicitor and counsel whose instructions where withdrawn before the hearing started. I take into account that the appellant is acting for herself.

9. A further difficulty is that there was an application for a stay of the orders made by the primary judge before his Honour this morning, which was dismissed. That gives rise to a further difficulty that the order as it currently stands requires the appellant to vacate the premises within one month of the 17 March 2023, which is effectively today.

10. Therefore it will be very difficult to see how any appeal can resolve the fate of those orders, as of tomorrow the appellant will be in breach of them. However enforcement of those orders will be a matter for the respondent and for him to take such steps as he may be advised in that regard.

11. Taking these matters into account, I am of the view that the appropriate course is to give the appellant a relatively short time to file an Amended Notice of Appeal raising proper grounds.

12. A further difficulty that will have to be addressed in that Notice of Appeal is that the orders made by the primary judge were interlocutory orders and leave to appeal is required. Leave to appeal will not be granted where the appeal is futile because the orders have already been carried into effect. That perhaps is a matter for another day. Nonetheless the appellant is now on notice that any Amended Notice of Appeal will have to deal with question of leave to appeal as well.

13. The grounds of appeal contained in the Notice of Appeal filed 15 April 2023 are struck out.

14. The appellant is granted leave to file an Amended Notice of Appeal within 14 days and this consideration of the fate of the appeal will be adjourned for further hearing until 5 May 2023 at 10.00 am.

15. The costs of today are reserved.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge.

Associate:

Dated:       3 May 2023