Farrington & Belkis

Case [2024] FedCFamC1A 133

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Farrington & Belkis [2024] FedCFamC1A 133

Appeal from: Farrington & Belkis (No 3) [2024] FedCFamC2F 660
Appeal number(s): NAA 162 of 2024
File number: CAC 924 of 2021
Judgment of: AUSTIN J
Date of judgment: 8 August 2024
Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Reinstatement – Where the applicant’s appeal was deemed abandoned following his failure to file the Draft Appeal Book Index – Where the applicant moved with commendable haste to seek re-instatement of the appeal – Where notwithstanding such haste the applicant’s grounds of appeal are unmeritorious – Where the applicant seeks to revive bias complaints made in a former appeal he voluntarily discontinued or subsequently waived – Where dissatisfaction with the result of the outcome of a trial does not manifest the deprivation of procedural fairness – Where no miscarriage of justice necessarily results from a witness remaining in Court before giving their evidence – Where the preference of the evidence given by one witness over that of another is an entirely unexceptional part of the judicial function – Application dismissed.  
Legislation:

Evidence Act 1995 (Cth) s 26

Family Law Act 1975 (Cth) Pt VII, ss 65D, 69ZT, 69ZX, 97

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

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, rr 13.14, 13.38. 13.44
Cases cited:

Allan & Ors & Allan & Ors (2014) FLC 93-606; [2014] FamCAFC 162

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Farrington & Belkis (No.2) [2023] FedCFamC2F 1343

Farrington & Belkis (No.3) [2024] FedCFamC2F 660

Farrington & Belkis [2023] FedCFamC2F 1076

Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Moore v Lambeth County Court Registrar [1969] 1 All ER 782

Northern Territory of Australia v GPAO (1999) 196 CLR 553; [1999] HCA 8

Paschalidis v Shamsizadeh [2017] NSWSC 1186

Smits v Roach (2006) 227 CLR 423; [2006] HCA 36

SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152; [2006] HCA 63

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283
Number of paragraphs: 49
Date of hearing: 8 August 2024
Place: Newcastle (via video link)
The Applicant: Litigant in person
Solicitor for the Respondent: Bevan & Co
The Independent Children's Lawyer: Did not participate in the appeal

ORDERS

NAA 162 of 2024
CAC 924 of 2021

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

MR FARRINGTON

Applicant
AND:

MS BELKIS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER…

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AGLC
Farrington & Belkis [2024] FedCFamC1A 133
Case
[2024] FedCFamC1A 133
Decision Date

CaseChat Overview and Summary

Mr Farrington sought the reinstatement of an appeal that was deemed abandoned due to his failure to file the Draft Appeal Book Index. The application was made promptly, but the applicant's grounds for appeal were found to be unmeritorious. The applicant also sought to revive bias complaints that were either voluntarily discontinued or waived in a previous appeal. The court examined whether dissatisfaction with the trial outcome manifested procedural unfairness and whether a witness remaining in court before giving evidence led to a miscarriage of justice. The court determined that the preference for one witness's evidence over another was a normal part of the judicial function.

The legal issues involved the discretion to reinstate an abandoned appeal and the conditions under which such discretion could be exercised. The principles established in Allan & Ors & Allan & Ors (2014) and Gallo v Dawson (1990) were applied, emphasizing that the discretion to reinstate could only be exercised if strict compliance with the rules would cause an injustice to the applicant. The merit of the intended appeal was considered, particularly in light of the abandonment being due to a procedural default rather than a failure to appeal within the time limit. Despite the applicant's promptness, the court found that the appeal was unmeritorious, and therefore, the applicant would not suffer genuine injustice if the application was refused.

The court dismissed the application for reinstatement of the appeal. The applicant's grounds for appeal were deemed unmeritorious, and the attempt to revive bias complaints from a previous appeal was unsuccessful. The court concluded that dissatisfaction with the trial's outcome did not necessarily indicate procedural unfairness, and the presence of a witness before giving evidence did not constitute a miscarriage of justice. The preference for one witness's evidence over another was considered a standard aspect of the judicial process. Consequently, the application was dismissed, and no further appeal was permitted.

Orders

Orders of the court

NAA 162 of 2024

CAC 924 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR FARRINGTON

Applicant

AND:

MS BELKIS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

8 AUGUST 2024

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 30 July 2024 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).

Background

Background to the litigation

For the reasons which follow, the application is dismissed.BACKGROUND Final parenting orders were first made between the parties with their consent in September 2019, but the applicant recommenced proceedings in May 2021. Both parties conducted the new litigation on the basis that changes to the 2019 orders were necessary (at [39]). The trial began in March 2023 and while part-heard, on 4 August 2023, the primary judge made interim orders providing for the children to live with the respondent and to have no contact with the applicant. His Honour gave ex tempore reasons for that interlocutory judgment (Farrington & Belkis [2023] FedCFamC2F 1076), from which there was no appeal. Following the pronouncement of the interim orders, the applicant applied to disqualify the primary judge from further participation in the litigation, but the application was dismissed on 19 October 2023 (Farrington & Belkis (No.2) [2023] FedCFamC2F 1343). The applicant did appeal that decision, but voluntarily discontinued the appeal about two weeks afterwards. The evidence in the trial closed in December 2023, final submissions were made in March 2024 and judgment was delivered in June 2024 (Farrington & Belkis (No.3) [2024] FedCFamC2F 660). In summary, the final orders allocate the respondent with sole parental responsibility for the children (Order 3) and require them to live with her (Order 4). It was declared that the children spend no time with the applicant (Order 5) and he was restrained from contacting the children and their older sibling (Orders 6 and 7). In broad terms, those orders reflected the applications of the respondent, the Independent Children’s Lawyer (“the ICL”), and the child welfare agency, which agency had intervened in the proceedings (at [20] and [63]).LEGAL PRINCIPLES The principles which apply to applications to re-instate appeals are not in doubt. In Allan & Ors & Allan & Ors (2014) FLC 93-606, the Full Court said this:32.The discretion to re-instate an abandoned appeal is not exercised in an unstructured or unprincipled way, but rather in accordance with the established legal principles set out within Gallo v Dawson (1990) 93 ALR 479 at 480 (see Haykal & Krawiec & Anor [2014] FamCAFC 110 at [31], [40]–[46]; Bemert & Swallow (2010) FLC 93–441 at [128]–[131]). As was made plain in Gallo v Dawson, the discretion may only be exercised in favour of the applicant upon proof that strict compliance with the Rules will “work an injustice upon the applicant”. When an application is made for an extension of time within which to appeal, the merit of the intended appeal is pivotal. However, in cases like the present, where the default sought to be remedied instead relates to a failure to meet a time limit within a properly commenced appeal, the merit of the appeal is not the paramount consideration (Jackamarra v Krakouer (1998) 195 CLR 516 at [4], [7], [9], [33], [66] and [73]). Nevertheless, the ostensible merit of the appeal remains a material consideration because an applicant seeking the re-instatement of the appeal will not genuinely suffer any injustice if refused permission to do so as an unmeritorious appeal, if re-instated, is liable to then be summarily dismissed for the lack of any reasonable prospect of success (ss 46(2) and 46(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“ the FCFCA Act”)).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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