Halit & Halit (No 2)

[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 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 (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

TREE J:

INTRODUCTION

1. On 1 November 2023, a judge of the Federal Circuit and Family Court of Australia (Division 2) dismissed two interlocutory applications by Ms Halit (“the mother”). The first sought that the Independent Children’s Lawyer (“the ICL”) disclose any “vested interests” or “affiliations” she had with Ms B Halit (“the maternal grandmother”) presumably to bolster an application for her discharge, and the second sought the recusal of the primary judge and that the proceedings be transferred to “another jurisdiction”. The proceedings were then transferred to the Federal Circuit and Family Court of Australia (Division 1).

2. From those orders the mother and, at least purportedly, Mr Kadri (“the father”) appeal, however neither appeared at the hearing before me.

3. The appeal is resisted by the maternal grandmother and the ICL.

4. For the reasons which follow, the appeal was dismissed on 26 March 2024.

   BACKGROUND

5. 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

6. 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.

7. The Application in an Appeal will be dismissed.

   THE APPEAL

8. 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)

9. 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.

10. 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”).

11. Rule 13.45 of the rules, provides:

    (1)      This rule applies if:

    (a)       an appeal is not taken to have been abandoned; and

    (b)       a party (the defaulting party) has not:

    (i)met a requirement under these Rules or the Family Law Regulations; or

    (ii)complied with an order in relation to the appeal (including an application for leave to appeal or any other application in relation to an appeal); or

    (iii)shown reasonable diligence in proceeding with an appeal or application.

    (2)      A court having jurisdiction in the appeal or application may:

    (a)       if the defaulting party is the appellant or the applicant:

    (i)dismiss the appeal or application; or

    (ii)fix a time by which a requirement is to be met and order that the appeal or application will be dismissed if the order imposing the requirement is not complied with; or

    …

    (3)The court may make an order under subrule (2) on its own initiative if, at least 14 days before making the order, written notice has been given to the parties about the date and time the court will consider whether to make the order.

    …

12. The principles pertaining to the relevant predecessor of that rule were discussed by the Full Court in Bethke & Bethke (2019) FLC 93-906, in the course of which the court said:

    25.In Jackamarra v Krakouer (1998) 195 CLR 516 (“Jackamarra”) at 528, Gummow & Hayne JJ said:

    …when an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way. …

    (Emphasis added)

13. Rule 13.45 is a family law practice and procedure provision as that term is defined in s 67(4) of the Act. It follows that ss 67(1)–(3) of the Act are engaged here. They provide:

    67       Overarching purpose of family law practice and procedure provisions

    (1)The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:

    (a)       according to law; and

    (b)        as quickly, inexpensively and efficiently as possible.

    …

    (2)Without limiting subsection (1), the overarching purpose includes the following objectives:

    (a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);

    (b) the efficient use of the judicial and administrative resources available for the purposes of the Court;

    (c) the efficient disposal of the Court’s overall caseload;

    (d)the disposal of all proceedings in a timely manner;

    (e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

    (3)The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

14. Further, s 68(1) of the Act provides:

    68       Parties to act consistently with the overarching purpose

    (1)The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 1) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.

15. I have already observed that the appeal as currently cast is hopeless. In accordance with Jackamarra v Krakouer (1998) 195 CLR 516, it is clear that the appeal would fail, and hence dismissal under r 13.45 for failure to comply with procedural directions amply warranted; to do otherwise would not be acting consistently with the overarching purpose.

16. In any event, the mother’s and father’s failure to appear at the hearing of the appeal would justify dismissal under r 13.31 of the Rules.

17. The appeal is dismissed.

    COSTS

18. In the event the appeal was dismissed, the maternal grandmother sought her costs on an indemnity basis in the sum of $16,324 or alternatively on a party/party basis in the lesser sum of $6,684.16.

19. The appeal was incompetent and should never have been brought. Neither appellant appeared. Unmeritorious litigation is no less unmeritorious because it is pursued by a litigant in person, nor is impecuniosity an absolute shield against a costs order (Northern Territory v Sangare (2019) 265 CLR 164 at [26]–[33]). I am satisfied that in the circumstances it is appropriate to make an order for costs.

20. While notwithstanding the appeal was wholly without merit and the non-compliance and non-attendance of the mother and father in its prosecution, the maternal grandmother could point to no exceptional circumstances justifying an order for indemnity costs (Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225).

21. Therefore, I fix the mother’s costs in the sum of $6,684.16 to be borne equally by the mother and father.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree.

Associate:

Dated:       28 March 2024