Falydn & Badenoch

Case [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 2019

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

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 JUDGMENT

AUSTIN J:

  1. 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…

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Falydn & Badenoch [2022] FedCFamC1A 170
Case
[2022] FedCFamC1A 170
Decision Date

CaseChat Overview and Summary

In Falydn & Badenoch, the Federal Circuit and Family Court of Australia (FCFCA) was tasked with interpreting the scope of its appellate jurisdiction under the Federal Circuit and Family Court of Australia Act 2020 (Cth). The case involved a dispute concerning the interpretation of the term “judgment” as it applies to the court's appellate authority. Specifically, the court was required to determine whether the amended definition of "judgment" under the Act broadened the court's appellate jurisdiction over decisions made during litigation.

The primary legal issue was whether the amendment to the definition of "judgment" in the FCFCA Act expanded the court's appellate jurisdiction to include any decision made during litigation, irrespective of whether it was substantive, procedural, or administrative. The court had to consider whether the inclusion of "decision" in the definition of "judgment" intended to extend the court's jurisdiction over all decisions made in the exercise of its original jurisdiction. The court also examined the Explanatory Memorandum accompanying the Federal Circuit and Family Court of Australia Bill 2019 (Cth) to ascertain any legislative intent regarding the scope of appellate jurisdiction.

The court concluded that the amendment to the definition of "judgment" did not expand the court's appellate jurisdiction over all decisions made during litigation. Instead, the term "decision" should be interpreted in a manner consistent with other forms of defined judgment, covering only those judicial decisions that are decisive of litigants' rights, even if only on an interim basis. The court relied on High Court jurisprudence, which established that a "judgment" from which an appeal lies is the "operative judicial act" embodied in the court's orders that resolve the justiciable dispute. The court held that rulings on points of law or answers to questions of law during proceedings do not constitute "judgments" unless they are decisive of the parties' rights. Therefore, the court's appellate jurisdiction remained limited to those judgments that resolve the justiciable dispute, and did not extend to all decisions made during litigation.

In light of the court's reasoning, it held that the appeal was not valid as the decision in question did not constitute a "judgment" within the meaning of the amended definition in the FCFCA Act. The court dismissed the appeal, affirming that the appellate jurisdiction of the FCFCA remains confined to judgments that are decisive of the parties' rights, and does not extend to all decisions made during litigation.

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

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).

Ratio Decidendi

Legal Principle Established

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