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…
Continue reading Falydn & Badenoch
Sign in free to access the full text
- AGLC
- Falydn & Badenoch [2022] FedCFamC1A 170
- Case
- [2022] FedCFamC1A 170
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.