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 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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 JUDGMENTAUSTIN 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 to show cause why the appeal should not be summarily dismissed.
On 23 March 2023, the appellant filed an Application for Review seeking review of the appeal registrar’s decision to list the appeal for hearing in relation to its summary dismissal. The review application is incompetent and is dismissed because the appeal was listed at my direction, not by reason of any decision made by the appeal registrar in exercise of delegated power. The appeal registrar simply notified the parties of the listing by an email sent on 21 March 2023.
The appellant was unable to show the appeal has any reasonable prospects of success for the following reasons.
The applications at first instance
On 13 February 2023, the appellant filed an Application in a Proceeding seeking this order:
1. Matter HBC 184/2019 be stayed.
Two days later, on 15 February 2023, the appellant filed a second Application in a Proceeding seeking exactly the same relief in these terms:
1. Matter HBC 184/2019 be stayed.
The two applications were supported by two identical affidavits filed by the appellant on 13 and 15 February 2023.
These reasons were advanced by the appellant for the stay of the proceedings:
2.Judge Taglieri made an order under s 102NA of the Family Law Act 1975 (CTH) in this case.
…
4.Tasmanian Legal Aid terminated assistance under the Cross Examination Scheme.
5.I immediately sought review of this decision but Tasmanian Legal Aid refused.
…
7.Tasmanian Legal Aid has not reversed its decision and I am currently without representation in this matter.
(As per the original)
The appellant evidently believes that, because he does not presently enjoy legal representation appointed by Tasmanian Legal Aid and the procedural order formerly made under s 102NA of the Act will preclude his personal cross-examination of the mother at trial about controversial factual issues in the proceedings, the trial judge will be precluded from justly determining the parenting cause between the parties.
The trial judge heard the applications on 16 March 2023, was not convinced of their merit, and dismissed them both by this order:
1.The applications filed by [the appellant] on 13 February 2023 and 15 February 2023 are dismissed.
In addition, by way of notation to the orders, his Honour affirmed the trial would proceed on the fixed dates, saying:
IT IS NOTED
4.The final hearing is commencing in the Federal Circuit & Family Court of Australia at Hobart before [the primary judge] commencing 10.00am Monday 27 March 2023 for an estimated hearing time of five (5) days.
The appeal
The Notice of Appeal filed on 17 March 2023 pleads these two grounds of appeal:
1.It is a fundamental principle of law that a judicial officer must conduct a fair hearing of the matter before them.
2. By dismissing the appellant's application to stay final hearing of this matter by his Order dated 16 March 2023, [the primary judge] acted on the wrong principle that he could continue to a final hearing of the matter in circumstances where s102NA of the Family Law Act applied but where the appellant was wrongly denied appropriate legal representation as provided for under the statutory scheme created by the Commonwealth so as to enable a fair trial to occur when s 102NA applied.
(As per the original)
Ground 1 is not a ground of appeal at all. It is simply a generic statement of principle at a high level of abstraction – undoubtedly correct (SDCV v Director-General of Security (2022) 405 ALR 209 at [50]–[63], [106], [129]–[132] and [171]–[178]) – but devoid of any particularisation as to how the trial judge allegedly erred in applying the principle when deciding the proceedings should not be stayed and the trial should proceed as scheduled.
Ground 2 is intended to be a complaint of the trial judge falling into appealable error of law by refusing the dual applications to “stay” the proceedings, but without identifying the supposed error.
The obvious intention of the two applications was to have the upcoming trial dates vacated and the proceedings held in a state of suspension until the appellant is afforded legal representation by the grant of legal aid. The decision of the trial judge to refuse the applications, embodied in Order 1, amounted to a decision refusing to either adjourn the hearing or vacate the hearing dates. Appeals from decisions of that type are prohibited (ss 26(2)(b)(ii) and 26(2)(b)(iii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)). It must follow that the appeal is incurably defective and so it should be summarily dismissed.
The power to do so (s 46(2) of the FCFCA Act) is vested in a single judge exercising appellate jurisdiction (s 32(3)(b) and 32(5) of the FCFCA Act).
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 27 March 2023
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