Halit & Halit (No 2)

Case [2024] FedCFamC1A 39

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Halit & Halit (No 2) [2024] FedCFamC1A 39

Appeal from: Halit & Halit (No 3) [2023] FedCFamC2F 1397
Appeal number: NAA 328 of 2023
File number: TVC 464 of 2023
Judgment of: TREE J
Date of judgment: 26 March 2024
Catchwords:

FAMILY LAW – APPEAL – Parenting – Non-compliance and non-attendance at hearing – Where the appeal as cast is incomprehensible and hopeless – Where the appellants were ordered to file an Amended Notice of Appeal to address the defects of their appeal – Where the appellants failed to do so – Where the dismissal of the appeal pursuant to r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) was foreshadowed in advance of the hearing – Where neither appellant appeared at the hearing – Where dismissal is justified pursuant to r 13.31 of the Rules.

FAMILY LAW – Application in an Appeal – Stay of proceedings – Where the mother sought a stay of the underlying parenting proceedings pending the finalisation of the appeal – Where the mother could point to no circumstances justifying such an order – Application dismissed – Appeal dismissed – Costs ordered in fixed sum.

Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 38, 67, 68

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.31, 13.45
Cases cited:

Bethke & Bethke (2019) FLC 93-906; [2019] FamCAFC 106

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801

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

Markov & Neville [2023] FedCFamC1A 143

Northern Territory v Sangare (2019) 265 CLR 164
Number of paragraphs: 21
Date of hearing: 26 March 2024
Place: Cairns (via video link)
The First Appellant: Litigant in person (No appearance)
The Second Appellant: Litigant in person (No appearance)
Counsel for the Respondent: Mr Fellows
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 328 of 2023
TVC 464 of 2023

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

MS HALIT

First Appellant

MR KADRI

Second Appellant
AND:

MS B HALIT

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

TREE J

DATE OF ORDER:

26 MARCH 2024

THE COURT ORDERS THAT:

1.The Application in an Appeal filed 15 February 2024 is dismissed.

2.The appeal is dismissed.

3.The first appellant and second appellant jointly pay the respondent’s costs in the sum of $6,684.16 within 28 days.

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…

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AGLC
Halit & Halit (No 2) [2024] FedCFamC1A 39
Case
[2024] FedCFamC1A 39
Decision Date

CaseChat Overview and Summary

The appeal in the matter of Halit & Halit (No 2) was heard by the Federal Circuit and Family Court of Australia's appellate jurisdiction. The appeal stemmed from a parenting dispute between the mother and father of two children, aged 13 and 4. The primary issue was the variation of existing parenting orders that had been consented to by the mother and the maternal grandmother in 2020, which assigned sole parental responsibility to the maternal grandmother with specific visitation rights for the mother and professionally supervised time for the father. The mother and father now sought to have sole responsibility for the children.

The court was tasked with deciding two primary legal issues. Firstly, whether the mother's application for a stay of the underlying parenting proceedings pending the finalisation of the appeal was justified. Secondly, whether the appeal itself could proceed given the significant procedural defects in the Notice of Appeal. The mother argued for a stay of the proceedings on the basis of the appellate jurisdiction allowing for such an order under specific circumstances. However, the court found no compelling circumstances that warranted a departure from the general rule that a successful litigant should be entitled to the fruits of their litigation.

The court dismissed the mother's application for a stay, noting that she could not point to any significant circumstances that would justify such an intervention. Regarding the appeal, the court found that the Notice of Appeal was incomprehensible and did not adequately detail the errors of law or principle asserted. Despite being ordered to file an Amended Notice of Appeal, the appellants failed to comply with this requirement, leading to the court considering dismissal under r 13.45(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. Neither appellant appeared at the hearing, further justifying the dismissal of the appeal under r 13.31 of the Rules. The appeal was ultimately dismissed, and the appellants were ordered to pay the respondent's costs in a fixed sum.

Orders

Orders of the court

NAA 328 of 2023

TVC 464 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS HALIT

First Appellant

MR KADRI

Second Appellant

AND:

MS B HALIT

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

TREE J

DATE OF ORDER:

26 MARCH 2024

THE COURT ORDERS THAT:

1. The Application in an Appeal filed 15 February 2024 is dismissed.

2. The appeal is dismissed.

3. The first appellant and second appellant jointly pay the respondent’s costs in the sum of $6,684.16 within 28 days.

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 appeal was dismissed on 26 March 2024.BACKGROUND The underlying proceedings concern an application for a variation of parenting orders for the mother and the father’s two children aged 13 and 4 after final parenting orders were made with the consent of the mother and the maternal grandmother in 2020 (the father making no appearance). Those orders vested the maternal grandmother with sole parental responsibility, provided the children live with her and spend time with the mother as agreed between them and that they only spend professionally supervised time with the father. At some stage that consensual position deteriorated, and the mother and father are now allied in their cause that they be solely responsible for the children’s welfare. APPLICATION IN AN APPEAL By Application in an Appeal filed 15 February 2024 the mother sought, as best as I can understand, a stay of the underlying parenting proceedings pending the finalisation of this appeal. It is true that, in the exercise of appellate jurisdiction, orders that are the subject of the appeal may be stayed, or the proceedings suspended in their entirety, pending the disposition of an appeal (s 38 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the Act”)). However, the discretion to exercise that power should only be used when there are compelling circumstances justifying a departure from the rule that a successful litigant is entitled to the fruits of their litigation – such as a risk of the appeal being rendered nugatory, or if there is the danger that were the appeal to succeed it will not be possible to substantially restore the appellant to their former position (Markov & Neville [2023] FedCFamC1A 143 at [19]–[20]). The mother could not point to any circumstances justifying an intervention as significant as she proposes. The Application in an Appeal will be dismissed.THE APPEAL The sole ground contained in the Notice of Appeal filed 29 November 2023 is:1.this Notice of Appeal is bonded with the Grounds of Appeal and the entire bonded Notice and its contents are inclusive;(As per the original) It is not a proper ground of appeal. True it is that some 26 pages of material was annexed to the Notice of Appeal, but it is largely incomprehensible, and certainly hopeless insofar as it is a challenge to the primary judge’s orders. Unsurprisingly, on 22 January 2024, an Appeal Judicial Registrar required the mother (and father) to file a proper notice of appeal including a notice which “details in Part E, in succinct numbered grounds of appeal, the error/s of law or principle asserted” (Order 8(c) of the orders made 22 January 2024). That was required to be done by 16 February 2024. Whilst there is some confusion as to whether that time was extended to 23 February 2024 (ICL’s Summary of Argument filed 13 March 2024, paragraph 4), in any event no Amended Notice of Appeal was ever filed. On 6 March 2024 an Appeal Judicial Registrar wrote to all parties advising that in light of that (and another) non-compliance, the court hearing the appeal would consider whether to dismiss the appeal under r 13.45(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).

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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