Halit & Halit

[2024] FedCFamC1A 37

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Halit & Halit [2024] FedCFamC1A 37

Appeal from:

Order dated 27 November 2023

Appeal number:

NAA 366 of 2023

File number:

TVC 464 of 2023

Judgment of:

AUSTIN J

Date of judgment:

22 March 2024

Catchwords:

FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant parents seek review of the appeal registrar’s decision to summarily dismiss their appeal – Where the appealed orders were entirely procedural in nature and do not constitute a judgment from which an appeal competently lies – Where the appealed orders do not affect the applicants’ substantive legal rights in any way – Where the appeal is bound to fail and was correctly dismissed by the appeal registrar – Application dismissed.

Legislation:

Family Law Act 1975 (Cth) Pt VII, s 62G

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 32, 36, 46

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.40, Sch 4

Cases cited:

Darley (No.2) [2023] FedCFamC1A 112

Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22

Number of paragraphs:

17

Date of hearing:

22 March 2024

Place:

Newcastle (via Microsoft Teams)

The First Applicant:

Litigant in person (did not participate)

The Second Applicant:

Litigant in person (did not participate)

Solicitor for the Respondent:

Lee Turnbull & Co

Counsel for the Independent Children's Lawyer:

Mr Pack

Solicitor for the Independent Children's Lawyer:

Collier Lawyers

ORDERS

NAA 366 of 2023
TVC 464 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS HALIT

First Applicant

MR KADRI

Second Applicant

AND:

MS B HALIT

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	22 MARCH 2024

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 13 March 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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Halit & Halit has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. These reasons explain the dismissal of an application to review the decision made by the appeal registrar on 5 February 2024 to summarily dismiss an appeal.

   Background

2. On 28 August 2020, orders were made in respect of two children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) with the consent of the maternal grandmother, the mother, and an Independent Children’s Lawyer (“the ICL”). The father did not participate in the litigation. Relevantly, the orders provided for the children to live with the maternal grandmother and for her to have sole parental responsibility for them.

3. At some later point, the maternal grandmother and the children moved from north Queensland to live much further south in Queensland. The relocation caused the mother and father to jointly institute fresh proceedings to vary the orders made in August 2020. Those proceedings are yet to be heard, but the trial is now fixed to start on 5 June 2024.

4. On 1 November 2023, a judge dismissed several interlocutory applications, including an application for the judge’s disqualification. An appeal from that judgment (NAA 328/2023), brought jointly by the mother and father, is pending and listed for hearing on 26 March 2024.

5. On 27 November 2023, another judge made procedural directions to ensure the orderly progress of the underlying proceedings towards trial. The orders achieved two objectives: first, the preparation of a family report pursuant to s 62G of the Act, with ancillary orders requiring the parties and children to attend upon the court child expert (Orders 1–7); and secondly, the adjournment of the proceedings to a case management event on an unspecified date once the family report is prepared and circulated (Order 8).

6. An appeal from those orders was filed on 27 December 2023 (NAA 366/2023), again ostensibly by the mother and father jointly. Although it appears the appeal was filed out of time, that apparent defect has been overlooked to this point in time.

7. In any event, the appeal registrar notified the parties, by emails sent on 15 January 2024, of the appeal being listed on 5 February 2024 to afford the applicants the chance to submit why the appeal should not be summarily dismissed.

8. Neither applicant appeared at the hearing on 5 February 2024, at which time the maternal grandmother and the ICL both submitted for the summary dismissal of the appeal, to which submissions the appeal registrar acceded.

9. On that date, for reasons delivered ex tempore, the appeal registrar made this order:

   1.The Notice of Appeal filed 27 December 2023 as proceedings NAA366/2023 is dismissed.

10. By an Application in an Appeal filed on 13 March 2024, the mother and the father jointly seek a review of the appeal registrar’s decision to summarily dismiss the appeal. The application is supposedly supported by the affidavits the applicants respectively filed on 13 March 2024.

11. The review application should have been filed by 26 February 2024, but an initial attempt by the applicants to file the review application within time on 23 February 2024 was thwarted by the national appeal registrar’s rejection of their application, as it did not comply with r 13.40(2) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). The delay in filing the review application in the correct form is disregarded and the application is instead dismissed for lack of merit.

12. The applicants did not appear to prosecute the review application, which was opposed by both the maternal grandmother and the ICL.

    Disposition

13. The review of the appeal registrar’s decision entails the de novo consideration of whether the Notice of Appeal filed on 27 December 2023 deserves summary dismissal.

14. The appealed orders made by the judge on 27 November 2023 were entirely procedural in nature and do not constitute a “judgment” from which an appeal competently lies under s 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”). None of the orders determines any aspect of the pending cause under Pt VII of the Act or affects the applicants’ substantive legal rights in any way (Darley (No.2) [2023] FedCFamC1A 112 at [16]–[17]). It necessarily follows the appeal is incompetent and must be dismissed. The applicants’ fervent belief in their right to challenge the orders made in November 2023 makes no difference.

15. The applicants will still enjoy the right of appeal from the orders which will eventually be made to determine the cause under Pt VII of the Act. Should they choose to exercise that right in due course, any grievance they continue to harbour about the procedural orders made on 27 November 2023 might be advanced as a component of that appeal, subject to them being able to demonstrate how the procedural orders impugn the final parenting orders in some material way (s 36(5) of the FCFCA Act; Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 482–484 and 494–497).

16. A single judge of the Federal Circuit and Family Court of Australia (Division 1) exercising appellate jurisdiction may summarily dismiss an appeal if it has no reasonable prospect of success, even if it is not hopeless or bound to fail (ss 32(3)(b), 32(5), 46(2) and 46(3) of the FCFCA Act). This appeal is bound to fail and was correctly dismissed by the appeal registrar, who was delegated with power to validly make the dismissal order (Item 13.2 to Schedule 4 of the Rules).

17. The review application is dismissed and the appeal registrar’s dismissal order stands.

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:       22 March 2024