Falydn & Badenoch
[2022] FedCFamC1A 170
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Falydn & Badenoch [2022] FedCFamC1A 170
Appeal from: Badenoch & Faldyn (No 3) [2022] FedCFamC2F 1311 Appeal number: NAA 219 of 2022 File number: HBC 184 of 2019 Judgment of: AUSTIN J Date of judgment: 19 October 2022 Catchwords: FAMILY LAW – APPEAL – Parenting – Practice and procedure – Review of decision – Where the appeal registrar rejected a Notice of Appeal for filing – Where the appealed orders appointing a single expert psychiatrist did not determine any legal right which one party could exert against the other – Where the decision is not a judgment from which an appeal lies – Application dismissed. Legislation: Family Law Act 1975 (Cth) Pt X, s 4
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 26, 28
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Div 7.1.6, rr 7.08, 13.40
Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) reg 4.02
Explanatory Memorandum, Federal Circuit and Family Court of Australia Bill 2019 (Cth)
Cases cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Bloch v Bloch (1981) 180 CLR 390; [1981] HCA 56
Fierro & Fierro [2022] FedCFamC1A 72
Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21
Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207
Number of paragraphs: 20 Date of hearing: 19 October 2022 Place: Newcastle (via video link) The Applicant: Litigant in person Solicitor for the Respondent: Murdoch Clare ORDERS
NAA 219 of 2022
HBC 184 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR FALDYN
Applicant
AND: MS BADENOCH
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
19 October 2022
THE COURT ORDERS THAT:
1.The Application for Review filed on 4 October 2022 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 Faldyn & Badenoch has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
On 26 September 2022, a judge of the Federal Circuit and Family Court of Australia (Division 2) made orders appointing and defining the instructions of a particular psychiatrist to provide expert opinion evidence as the single expert in proceedings litigated between the parties over an adolescent child under Pt VII of the Family Law Act 1975 (Cth) (“the Act”), it being an agreed position that there were “urgent and serious concerns about the child’s mental health and well-being” and single expert opinion evidence was required (at [8]).
The parties had been unable to reach agreement about the person who should be appointed as the single expert and so the primary judge listed the matter for the discrete decision of that issue in September 2022.
The father opposed the psychiatrist selected to fulfil the role of the single expert, apparently on grounds related to her area of expertise, her experience and also because interviews would have to be conducted by audio-visual link. The father proposed the appointment of a different psychiatrist, currently unavailable, whose selection would necessarily entail adjournment of the trial fixed for late November 2022 until he became available. The father was unable to explain to the primary judge how his promotion of that particular psychiatrist could be reconciled with his assertion of the need to urgently finalise the proceedings.
Only three psychiatrists were identified as being eligible to accept appointment as the single expert. The primary judge provided lengthy reasons for the psychiatrist selected.
The father sought to file a Notice of Appeal from the orders of the primary judge, but the appeal registrar rejected it. In two emails sent to the father, he was advised his proposed appeal was incompetent because:
The determination to appoint a particular expert to assess the child and the consequential orders giving effect to that determination is not a “judgment” from which any appeal competently lies.
As authority for that proposition, the appeal registrar referred the father to Tallant & Kelsey (2016) FLC 93-742 and Fierro & Fierro [2022] FedCFamC1A 72.
The father disagreed with the appeal registrar’s decision and filed an Application for Review on 4 October 2022, seeking the review of the appeal registrar’s refusal to accept his Notice of Appeal for filing. The application ought have been brought in the form of an Application in an Appeal (rr 13.40(1)(b) and 13.40(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)), but the procedural irregularity is overlooked.
For the following reasons, the father’s application is dismissed and the appeal registrar’s decision is confirmed. The Notice of Appeal dated 3 October 2022, comprising the father’s proposed appeal from the orders made by the primary judge on 26 September 2022, should not be accepted for filing.
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)).
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.
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.
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.
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).
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.
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.
As was pointed out in Fierro & Fierro (at [15]):
15The 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).
In this instance, the primary judge merely made an interlocutory ruling on which one of three eligible psychiatrists would be appointed as the single expert. The ruling did not determine any legal right which one party could exert against the other. Neither party had the “right” to the appointment of a single expert, but once accepted a single expert should be appointed, neither had the “right” to the appointment of their preferred candidate nor the “right” to veto the other’s choice or the expert eventually selected. The decision was merely one about how the litigation would best be conducted to facilitate adjudication of the parties’ rights under Pt VII of the Act. The decision is not a “judgment” from which an appeal lies.
While the father may be dissatisfied with the psychiatrist selected by the primary judge for the role of single expert, he is not without redress. For example, if dissatisfied with the content of the single expert report subsequently furnished, he may confer with or pose questions to the single expert in advance of trial (Div 7.1.6 of the Rules). He could also seek the appointment of an adversarial expert, if certain conditions are met (r 7.08 of the Rules). At trial, he may test the validity of the single expert’s opinion evidence via cross-examination.
It remains possible the father will eventually be satisfied with the opinion evidence given by the single expert, but assuming he is not, he may successfully persuade the primary judge that such evidence should be given little or no weight. Any evidence ultimately given by the single expert is not binding upon the primary judge.
Even if the decision of the primary judge was a “judgment” amenable to appeal, it embodies only procedural orders and would require the grant of leave to prosecute it (s 28(1)(b) of the FCFCA Act; reg 4.02 of the Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth)). The Notice of Appeal which the father wants to file neither seeks the grant of leave to appeal nor pleads any facts upon which it would be warranted, but in any event, leave is rarely granted to appeal from procedural orders when no question of general principle is at stake (Hogan v Australian Crime Commission (2010) 240 CLR 651 at [34]; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; Bloch v Bloch (1981) 180 CLR 390 at 395). Nothing about this case suggests leave ought be granted.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 19 October 2022
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