Emson & Makin
[2022] FedCFamC1A 5
•28 January 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Emson & Makin [2022] FedCFamC1A 5
Appeal from: Emson & Makin [2021] FedCFamC1F 62 Appeal number(s): NAA 54 of 2021 File number(s): NCC 212 of 2018 Judgment of: AUSTIN J Date of judgment: 28 January 2022 Catchwords: FAMILY LAW – APPEAL – Practice and procedure – Where the appellant pleads 29 separate grounds of appeal with 24 sub-grounds – Where the appeal was listed to afford the appellant the opportunity to submit why many of the grounds of appeal should not be struck out as being incompetent – Where many of the grounds as pleaded are not competent or unintelligible – Where the grounds are insufficiently particularised to fairly enable the respondent to understand the case she must meet – Where with the exception of three grounds, all others are struck out as incompetent. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 65AA
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32, 69
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23(3)
Cases cited: House v The King (1936) 55 CLR 499; [1936] 40
Tame v NSW (2002) 211 CLR 317; [2002] HCA 35
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Number of paragraphs: 21 Date of hearing: 28 January 2022 Place: Newcastle The Appellant: Litigant in person Counsel for the Respondent: Mr Weightman Solicitor for the Respondent: Mullane & Lindsay Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
NAA 54 of 2021
NCC 212 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR EMSON
Appellant
AND: MS MAKIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
28 JANUARY 2022
THE COURT ORDERS THAT:
1.All but Grounds 10, 16 and 26 contained within the Notice of Appeal filed on 9 December 2021 are struck out.
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 Emson & Makin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
This appeal concerns orders made by a Judge of the Federal Circuit and Family Court of Australia (Division 1) on 20 September 2021 concerning the parties’ children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
The orders made provision for the respondent to have sole parental responsibility for the children, for the children to live with her, and for the children to spend time with the appellant, beginning with a period of professional supervision.
By his Notice of Appeal, the appellant indicates that, if the appeal succeeds and the appealed orders are set aside, he wants discretion re-exercised and substitute orders made for him to have sole parental responsibility for the children and for them to live with him.
The appeal was listed today to afford the appellant the opportunity to submit why many grounds of appeal should not be struck out as being incompetent. The power to do so is found within the Federal Circuit and Family Court of Australia Act 2021 (Cth) (ss 32(3) and 69(4)(b)) and may be exercised by a single judge (ss 32(3) and 32(5)).
The appellant pleads 29 separate grounds of appeal, though Ground 6 comprises another 24 sub-grounds, all of which run to six typewritten pages. The sheer expanse of the grounds is, of itself, reason to doubt the merit of them all (Tame v NSW (2002) 211 CLR 317 at 345). At the very least, multiple unmeritorious grounds are liable to conceal those which may have merit (Thorne v Kennedy (2017) 263 CLR 85 at [49]).
Without reciting the entirety of the grounds in these reasons, a summarised discussion of their effect will exemplify the incompetence of most.
Numerous grounds assert the primary judge “misconstrued” certain facts and circumstances, principally because her Honour accepted the respondent’s evidence in preference to his (Grounds 1, 2, 4, 6, 13, 14, 17, 18, 21, 22 and 25), when he asserts her evidence was false. Other grounds repeat the bare allegation of the respondent’s evidence being untrue (Grounds 2, 4, 6, 12, 13, 14 and 15). However, none of the grounds contend it was not open to the primary judge to prefer the respondent’s evidence over the appellant’s and, even if it was so contended, there was no ostensibly valid basis for the contention to be maintained or sustained.
The closest the appellant comes to challenging the primary judge’s reliance upon the respondent’s evidence is by alleging the whole of his evidence was “ignored” (Ground 28), but that is demonstrably false because the primary judge recited the evidence upon which the appellant relied (at [55]) and accepted some of his evidence (at [29], [30], [34], [156], [159], [161] and [177]), though, generally, the primary judge found him unreliable, for reasons given (at [56]–[61]). One cannot ignore evidence if it is actually evaluated and rejected.
To the extent the grounds could be charitably interpreted as allegations of material factual mistakes, they are insufficiently particularised to fairly enable the respondent to understand the case she must meet. A simple example will suffice. The reasons for judgment comprise 192 paragraphs, yet Ground 6A boldly alleges:
There are too many here to list in terms of her Honour erring in misconstruing the facts of events. This is because her Honour has chosen to write her Reasons for Judgment off those of the mother; which are fraudulent in accordance with Ground 1. As a result, generally the facts where her Honour has relied on the facts of the mother within each of the 192 Reasons for Judgment are incorrect and subsequently each of them are challenged individually with not all of these being included her (sic) for space and time purposes.
(Bold emphasis added)
The Summary of Argument which the appellant will be required to file must carefully identify any alleged factual mistake, the finding which he contends should have been made instead, state concisely why the finding was wrong, and refer to the relevant evidence (r 13.23(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)). While the grounds of appeal need not do that, they must still lucidly reveal the alleged individual factual errors; not just blandly assert every single paragraph in the reasons for judgment is flawed.
Some of the alleged factual mistakes are facile because they have no bearing upon the outcome. As an example, in introductory comments the primary judge recited the appellant has worked in various different occupations, one being as a “manager” (at [5]), but the appellant complains the primary judge erred in using that description of him because, as pleaded (Ground 6P), he:
…has not worked as a manager. [The appellant] studied at University and has since conducted numerous roles within his industry, excluding that of a manager.
The bare complaint of the respondent filing her trial affidavit five days later than was required by earlier procedural orders (Ground 3) is not a viable ground of appeal. The appellant did not contend he was thereby deprived of procedural fairness. Nor could he have. Her affidavit was still in his hands in June 2021, nearly two months before the trial commenced in August 2021.
The appellant’s complaint of the primary judge’s “negligence” in making orders for the children to live with the respondent, which is predicated upon his assertion that the respondent perpetrated family violence upon or in the presence of the children (Ground 5), is not a viable ground of appeal. No finding of fact was made of the respondent committing family violence. On the contrary, partly in reliance upon the appellant’s admissions, the primary judge found it was instead him who committed and exposed the children to family violence (at [29]–[38], [99], [115] and [165]–[169]).
The bare complaint that the respondent “incited violence to manipulate the law in her favour” (Ground 27) is a statement of the appellant’s belief about the respondent’s conduct and is not a viable assertion of appealable error by the primary judge.
The complaint of the primary judge erring by allowing the single expert to express a certain opinion and by permitting the respondent’s counsel to make a certain submission (Ground 6V) is not a viable ground of appeal. The appellant may not have liked the evidence given or the submissions made against him, but the primary judge could not tell witnesses what evidence they should give, nor tell lawyers what submissions they may make.
The complaint of the primary judge erring by “ignoring NSW Police subpoena material” (Ground 9) is not a competent ground of appeal. The primary judge was duty-bound to ignore any documents produced in answer to subpoena, if not tendered in evidence as exhibits.
The complaints about the omission of an alleged fact from the second Family Report (Grounds 11 and 29) cannot be interpreted as appealable error made by the primary judge and so is not a viable ground of appeal. The content of the Family Report was the responsibility of the Family Consultant and she should have been cross-examined about any alleged omission.
Numerous other grounds of appeal are, respectfully, unintelligible (Grounds 7, 8, 12, 19, 20, 23 and 24).
The “judgment” challenged in this appeal is discretionary, from which only certain identifiable grounds of appeal lie (House v The King (1936) 55 CLR 499 at 504–505).
The only grounds of appeal, the competence of which can be inferred to potentially fall within those permitted by House v The King, or which potentially amount to some other form of legitimate appealable error, are:
(a)Ground 10, which alleges an insufficiency of reasons for the findings expressed at [175] and [186] of the judgment;
(b)Ground 16, which contends the primary judge gave insufficient weight to the evidence concerning his “forgiveness in relation to the [respondent]”; and
(c)Ground 26, which contends the appellant is not meaningfully involved in the children’s lives, implying some legal error in the application of ss 60B, 60CA, 60CC(2)(a), 60CC(3)(b) or 65AA of the Act.
With the exception of those three grounds, all others are struck out as incompetent.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin delivered 28 January 2022. Associate:
Dated: 31 January 2022
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