Falvo & Melita
[2025] FedCFamC1A 13
•5 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Falvo & Melita [2025] FedCFamC1A 13
Appeal from: Order dated 15 October 2024 Appeal number: NAA 306 of 2024 File number: LEC 781 of 2023 Judgment of: AUSTIN J Date of judgment: 5 February 2025 Catchwords: FAMILY LAW – APPEAL – Practice and Procedure – Review of Decision – Where the appellant seeks review of the appeal registrar’s decision to reject her Application in an Appeal seeking leave to file an appeal out of time – Where there is no utility in extending the time within which the appeal may be brought because it is futile – Application dismissed – Costs Legislation: Court Security Act 2013 (Cth) s 39
Family Law Act 1975 (Cth) Pt VIIIAB, s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.09, 8.20, 12.17, 13.03, 15.23
Cases cited: Faldyn & Badenoch [2022] FedCFamC1A 170
Medlow & Medlow (2016) FLC 93-692; [2015] FamCAFC 34
Whitmore & Whitmore [2022] FedCFamC1A 75
Number of paragraphs: 44 Date of hearing: 5 February 2025 Place: Newcastle (via MS Teams) The Applicant: Litigant in person Counsel for the Respondent: Ms Decle Solicitor for the Respondent: Beek & Gallagher Legal ORDERS
NAA 306 of 2024
LEC 781 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS FALVO
Applicant
AND: MR MELITA
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
5 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 30 December 2024 is dismissed.
2.The applicant shall pay the respondent’s party/party costs, fixed in the sum of $3,600, within six months.
3.Otherwise, the Amended Response to an Application in an Appeal filed on 24 January 2025 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 the pseudonym Falvo & Melita has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
These reasons explain the dismissal, with costs, of an application to review the decision made by the appeal registrar on 18 December 2024 refusing the applicant’s application to file a Notice of Appeal out of time.
BACKGROUND
The applicant and the respondent are engaged in ongoing litigation before the Federal Circuit and Family Court of Australia (Division 2).
In December 2023, the respondent filed an application for financial relief under Pt VIIIAB of the Family Law Act 1975 (Cth) (“the Act”), which the applicant currently resists because she denies any de facto relationship ever existed between the parties. The proceedings are now listed for hearing in July 2025.
The proceedings were listed before the Court for an interlocutory event on 15 October 2024, at which time the judge made a suite of orders to achieve four separate outcomes, being:
(a)the dismissal of multiple interlocutory applications filed by the applicant, with costs in respect thereof reserved (Orders 1–8);
(b)an injunction to restrain the applicant from bringing any further interlocutory application without the leave of the Court (Order 9);
(c)the adjournment of another interlocutory application filed by the respondent for hearing on a later date (Orders 10–16); and
(d)fixing the proceedings for final trial in July 2025, with attendant procedural directions (Orders 17–25).
The applicant attempted to file a Notice of Appeal on 13 November 2024, intending to appeal from all those orders, but the Notice of Appeal was rejected as the appeal limitation period expired the day before.
On 18 November 2024, the applicant filed an Application in an Appeal seeking administrative acceptance of the Notice of Appeal because she believed it had been lodged for filing within time. The respondent opposed the application by a Response filed on 26 November 2024.
The appeal registrar heard the disputed application on 17 December 2024, treating it as an application for an extension of time within which to appeal, and dismissed it the next day. The appeal registrar made these orders on 18 December 2024:
1.The application seeking extension of time to appeal filed 18 November 2024 is dismissed.
2.The applicant pay to the respondent costs of the application fixed in the sum of $5,000 by 18 June 2025.
On 30 December 2024, the applicant filed an Application in an Appeal seeking multiple orders, though in effect they collectively amount to the review of the appeal registrar’s orders.
The applicant indicated her wish for the review application to be heard in open court, which request was accommodated.
In support of the review application, the applicant relied upon:
(a)her draft Notice of Appeal dated 18 November 2024, annexed to the original extension application;
(b)her affidavit filed on 18 November 2024 in support of the extension application;
(c)the written submissions she filed on 27 November 2024 in support of the extension application;
(d)her affidavit filed on 30 December 2024 in support of the review application;
(e)the written submissions she filed on 16 January 2025 in support of the review application; and
(f)another affidavit she filed on 29 January 2025.
In her last written submissions, the applicant purported to rely upon every document she has filed in the first-instance proceedings, but she was not permitted to do so.
The respondent resisted the application, relying upon his Amended Response to an Application in an Appeal, supporting affidavit and written submissions, all filed on 24 January 2025. He also relied upon his written submissions filed on 9 December 2024 in support of his opposition to the applicant’s extension application.
LEGAL PRINCIPLES
Being a review application, the applicant need not demonstrate any error made by the appeal registrar. She misconceived the necessity to do so. This is an original hearing of her application for an extension of time within which to bring an appeal from all orders made by the judge on 15 October 2024.
The legal principles which govern the disposition of applications to bring an appeal out of time were expressed as follows in Whitmore & Whitmore [2022] FedCFamC1A 75:
17.Countless decisions have addressed the principles which apply to the determination of applications to extend time to appeal. Inevitably, they all lead back to principles enunciated by the High Court of Australia in Gallo v Dawson (1990) 93 ALR 479 and Jackamarra v Krakouer (1998) 195 CLR 516.
18.Essentially, the applicant seeking the extension of time must demonstrate that there is a substantial issue to be raised in the appeal, for otherwise it is pointless granting the extension of time to bring it. That issue is always central to the inquiry, though other considerations then influence the exercise of discretion. Such other considerations are unconfined but include the extent of the delay, the cogency of the reasons offered by the applicant for the delay, whether hardship or prejudice would accrue to the respondent if an extension of time were granted, and the public policy of ensuring that finalised litigation is not unnecessarily re-opened.
Those principles are applied here.
DISPOSITION
It may be accepted at the outset that the applicant genuinely believes she lodged the Notice of Appeal within the appeal limitation period. She deposed she did not actually receive a copy of the orders made by the judge on 15 October 2024 until two days later, on 17 October 2024, so she believes her appeal was filed within time on 13 November 2024. Nevertheless, her honest belief is mistaken. The orders made by the judge on 15 October 2024 took effect immediately upon their pronouncement that day (r 13.03(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)) and the appeal limitation period began to run from that point in time until its expiration on 12 November 2024. Her Notice of Appeal was therefore correctly rejected on 13 November 2024.
The reasonable explanation for the very short period by which the Notice of Appeal was late overcomes one problem for the applicant, but not another. There is no utility in extending the time within which the appeal may be brought because it is futile.
No appeal lies from Orders 10–25 made by the judge on 15 October 2024 because none of those orders constitutes a “judgment” from which an appeal may be brought (Faldyn & Badenoch [2022] FedCFamC1A 170 at [9]–[16]). The orders do not determine any legal right enjoyed by the applicant. They only fix the future dates for the proceedings (or a particular aspect of them) to be heard and make procedural directions to facilitate such hearings.
The applicant’s proposed appeal can only therefore properly concern Orders 1–9, which orders collectively dismiss four separate interlocutory applications brought by the applicant, reserve the costs incurred in respect of those dismissed applications, and restrain the applicant from bringing any further interlocutory application without leave.
The grounds of appeal pleaded by the applicant in her draft Notice of Appeal complain of her denial of procedural fairness (Grounds 1, 2 and 3), the judge’s actual and apprehended bias (Ground 4), fraud (Ground 5), and unspecific complaints of unfairness (Grounds 6, 7 and 8).
None of those grounds of appeal have any prospect of success given the nature of the orders under challenge. The orders are now addressed sequentially to explain why.
Order 1
This order dismissed the applicant’s application filed on 26 April 2024.
That application was entirely incompetent because it sought a “writ of execution for costs” against some lawyers, two registrars of the Court, and the Court itself. No preceding costs orders were ever sought by the applicant, let alone granted in her favour, against either the lawyers, the registrars or the Court. Accordingly, absent any existing costs orders needing enforcement, there was no basis upon which the judge could issue writs of execution as a method of enforcement.
The judge was correct to summarily dismiss the application on 15 October 2024.
Order 3
This order dismissed the applicant’s application filed on 26 August 2024, in which she sought this relief:
1.Leave for [the applicant’s son] to give live testimony as to his Affidavit filed in the matter [matter number] during court proceedings beginning 15 October 2024 at the Federal Circuit and Family Court of Australia.
So far as can be understood, the applicant was seeking leave for her son to give oral “testimony” verifying the evidence-in-chief contained within his previously filed affidavit.
The application was correctly dismissed by the judge.
First, the interlocutory event conducted before the Court on 15 October 2024 was not the final hearing of the proceedings, so no witnesses did or needed to give any evidence.
Secondly, if the applicant instead intended that her son give oral evidence in support of an outstanding interlocutory application on 15 October 2024, he could not have done so unless cross-examined on his evidence-in-chief at the respondent’s election, which could only have occurred if the respondent established exceptional circumstances (r 5.09(2) of the Rules). The respondent did not seek to cross-examine the applicant’s son.
Thirdly, the judge made procedural orders on 15 October 2024 about the future date by which the parties must file the affidavit evidence upon which they wish to rely at trial in July 2025 (Orders 19 and 21). If the applicant intends to rely upon her son as a witness at the final trial then, provided his affidavit is filed as directed, he will neither need nor be permitted to give any oral evidence unless he is required by the respondent for cross-examination (r 8.20 of the Rules). If not required for cross-examination, his affidavit evidence will stand unchallenged.
Order 5
This order dismissed the applicant’s application filed on 3 September 2024, in which she sought this relief:
1. Motion to Address Witness Interference/Breach of APVO
To the extent the application and the supporting affidavit evidence can be understood, the applicant wanted some form of order made to punish the respondent (and other third parties) for the alleged breaches of a family violence order made in August 2024 by a State court, which order protects the applicant’s daughter from stalking, harassment and intimidation by the respondent. The applicant contended she is a beneficiary of the family violence order because she enjoys a “domestic relationship” with her daughter.
Even if that is so, the application was correctly dismissed by the judge because the imposition of any sanction for the alleged breach of the family violence order lies within the exclusive province of the State court which made the order. Most probably, that would have entailed a complaint being made to the State police and the initiation of a criminal prosecution by the police against the alleged offenders. The judge had no federal jurisdiction under the Act empowering the remedy of the alleged breaches of the State order.
Order 7
This order dismissed the applicant’s application filed on 30 September 2024, by which application the applicant sought permission to privately record the proceedings conducted before the Court on 15 October 2024. The application was correctly dismissed by the judge.
It is an offence to record proceedings within a federal court (s 39 of the Court Security Act 2013 (Cth)), unless permission to do so is given by authorised persons (s 39(2)), which embargo is endorsed by the Rules (r 15.23). There would have been no reason to authorise the applicant to record the proceedings conducted on 15 October 2024 because an official transcript is independently created to verify and prove what is said in court during all proceedings. While the applicant might mistrust the accuracy of the official transcript or wish to avoid the cost of its acquisition, the official transcript (or the official recording from which the transcript is created) would always be accepted in preference to the applicant’s private recording as being the more accurate record of events in instances of any disparity, as its provenance is beyond reproach.
Orders 2, 4, 6 and 8
These orders simply reserve, but do not decide, the question of costs incurred in prosecuting and defending the applicant’s dismissed interlocutory applications. Such procedural orders are not judgments from which any appeal lies.
Order 9
This order restrains the applicant from bringing any further interlocutory application without leave. Being an interlocutory order, no appeal lies from it without the grant of leave to bring it.
The grant of such leave would require the applicant to show the order is attended by sufficient doubt to justify appellate scrutiny and substantial injustice would result if leave were refused, supposing the decision is wrong (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]).
Given the patent incompetence of the four interlocutory applications brought by the applicant and her evident propensity to initiate groundless interlocutory disputes, there is no reason to doubt the validity of this order, at least on any of the grounds pleaded in the draft Notice of Appeal. Moreover, the applicant suffers no substantial injustice by being bound by the injunction as she need only explain why another interlocutory application is justified to attract leave to bring it.
COSTS
The respondent sought an order compelling the applicant to pay his costs of the failed application, preferably on an indemnity basis in the sum of $4,500 but otherwise on a party/party basis in the sum of $3,626 – in either case within six months.
The application for indemnity costs is dismissed. The applicant’s prolix, irrelevant and unsubstantiated allegations of misconduct and incompetence, made against both the appeal registrar and the respondent, do not genuinely engage the principles justifying the grant of indemnity costs. Paradoxically, the applicant’s misconceived submissions only made it easier for the respondent to successfully resist her application.
The alternate application for party/party costs is granted. The review application seeking to open appellate proceedings was wholly unsuccessful (s 117(2A)(e)) and was quite unnecessary in view of the correct decision made by the appeal registrar (s 117(2A)(c)). Those features outweigh any consideration of the applicant’s financial circumstances (s 117(2A)(a)), which she was reluctant to disclose in any event. The applicant did not deny she owns unencumbered real property, estimated to be worth $600,000.
Costs are fixed in the rounded sum of $3,600 pursuant to r 12.17(1)(a) of the Rules.
As proposed by the respondent, the applicant will have six months within which to pay such costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 6 February 2025
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