Falydn & Badenoch (No 3) - [2023] FedCFamC1A 35

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Falydn & Badenoch (No 3) [2023] FedCFamC1A 35

Appeal from: Falydn & Badenoch [2023] FedCFamC1F 170

Appeal number: NAA 63 of 2023

File number: HBC 184 of 2019

Judgment of: AUSTIN J

Date of judgment: 24 March 2023

Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Review of decision – Where the appellant seeks the review of the decision listing the appeal to show cause why it should not be summarily dismissed – Where the application is incompetent because the appeal was listed at the direction of a judge, not by reason of any decision made in the exercise of delegated power – Application dismissed – Summary dismissal – Where appeals from decisions of this type are prohibited by the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where the appeal is incurably defective – Appeal summarily dismissed.

Legislation:
Family Law Act 1975 (Cth) Pt VII, s 102NA

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 32, 46

Cases cited: SDCV v Director-General of Security (2022) 405 ALR 209; [2022] HCA 32

Number of paragraphs: 17

Date of hearing: 24 March 2023

Place: Newcastle (via video link)

The Appellant: Litigant in person

Counsel for the First Respondent: Ms Sawyer

Solicitor for the First Respondent: Murdock Clarke

The Second Respondent: Litigant in person

Counsel for the Independent Children's Lawyer: Ms Mooney SC

Solicitor for the Independent Children's Lawyer: Tasmania Legal Aid
ORDERS

NAA 63 of 2023
HBC 184 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR FALDYN

Appellant

AND:
MS BADENOCH

First Respondent

MS FALDYN

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

AUSTIN J

DATE OF ORDER:

24 MARCH 2023

THE COURT ORDERS THAT:
1.The Application for Review filed on 23 March 2023 is dismissed.
2.The appeal is summarily 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 (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

The appellant is contesting child-related proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”), the trial of which is listed to commence next Monday 27 March 2023.
On 16 March 2023, the appellant appealed from orders made by the trial judge dismissing his two identical applications to “stay” the proceedings.
The appeal was listed for hearing today (24 March 2023) for the appellant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FedCFamC1A 35
Decision Date

CaseChat Overview and Summary

The case of Falydn & Badenoch (No 3) [2023] FedCFamC1A 35 involves an appeal brought by the appellant, Mr Falydn, against decisions made in child-related proceedings under the Family Law Act 1975 (Cth). The appeal was lodged against the orders made by the trial judge which dismissed Mr Falydn's applications to stay the proceedings. The appeal was heard in the Federal Circuit and Family Court of Australia's Division 1 Appellate Jurisdiction.

The primary legal issue before the court was whether the appeal was competent and whether it should be summarily dismissed. The court considered the grounds of appeal presented by Mr Falydn, which included claims that the trial judge failed to conduct a fair hearing and that the refusal to stay the proceedings was erroneous. The court found that the first ground of appeal was not a ground of appeal at all, as it was a generic statement of principle rather than a specific allegation of error. The second ground of appeal was also found to be deficient, as it failed to identify any specific legal error by the trial judge.

The court dismissed the appeal and concluded that it was incurably defective. The court found that the appeal was incompetent because it was based on decisions that are not appealable under the Federal Circuit and Family Court of Australia Act 2021 (Cth). The court also noted that the appeal registrar had listed the appeal for hearing at the direction of the judge, not by reason of any decision made in the exercise of delegated power.

The court dismissed the application for review and summarily dismissed the appeal. The court found that the appeal was incurably defective and could not proceed. The court also found that the appellant had failed to show that the appeal had any reasonable prospects of success.

In summary, the court dismissed the appeal and found it to be incurably defective. The appeal was based on decisions that are not appealable and the appellant failed to demonstrate that the appeal had any reasonable prospects of success. The appeal was therefore summarily dismissed.

Orders