Janzen & Naish
[2024] FedCFamC1A 75
•7 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Janzen & Naish [2024] FedCFamC1A 75
Appeal from: Janzen & Naish [2024] FedCFamC2F 309 Appeal numbers: NAA 83 of 2024
NAA 106 of 2024File number: CAC 119 of 2021 Judgment of: AUSTIN J Date of judgment: 7 May 2024 Catchwords: FAMILY LAW – APPEAL – Where the wife appeals from orders made by the primary judge requiring the parties to bring in orders reflecting findings with respect to the parties’ children and the division of their property – Where the orders appealed from do not finally determine the wife’s substantive rights – Where the appeal is incompetent and is amenable to summary dismissal – Where the lawyers for the wife (“the lawyers”) purported to jointly appeal from orders requiring them to pay 70 per cent of the husband’s costs – Where joint appeals by multiple appellants are only entertained when their appellate interests wholly align – Orders allowing the lawyers a short period of time within which to file an Amended Notice of Appeal substituting themselves as the sole appellants – Where the respondent’s application for costs is dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII and Pt VIII
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 32, 46
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.07
Cases cited: Aitken & Aitken (2023) 66 Fam LR 314; [2023] FedCFamC1A 69
Commonwealth v Bank of NSW (1949) 79 CLR 497; [1949] ALR 925
Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91
Lainhart & Ellison (2023) FLC 94-166; [2023] FedCFamC1A 200
Number of paragraphs: 15 Date of hearing: 7 May 2024 Place: Newcastle (via MS Teams) Counsel for the First Appellant: Mr Berger KC Solicitor for the First Appellant: C Law Firm Counsel for the Second Appellant: Mr Berger KC Solicitor for the Second Appellant: C Law Firm Counsel for the Respondent: Mr Howard Solicitor for the Respondent: Robinson + McGuinness Family Law Solicitor for the Independent Children's Lawyer: Legal Aid ACT ORDERS
NAA 83 of 2024
NAA 106 of 2024
CAC 119 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS JANZEN
First Appellant
C LAW FIRM
Second Appellant
AND: MR NAISH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
7 MAY 2024
THE COURT ORDERS THAT:
1.In Appeal NAA 83/2024:
(a)the first appellant is discharged as a party to the appeal;
(b)Grounds 1 to 6 inclusive within the Notice of Appeal filed on 11 April 2024 are summarily dismissed;
(c)the second appellant shall file and serve an Amended Notice of Appeal, confining the challenge to only Order 5 made on 14 March 2024, by Friday 10 May 2024, in default of which the appeal is dismissed.
2.Upon compliance with Order 1(c), Appeal NAA 106/2024 shall be consolidated with Appeal NAA 83/2024.
3.The two appeals are referred back to the appeal registrar for procedural directions.
4.The respondent’s application for costs of the appearance today is dismissed.
NOTATION:
A.The respondent does not require the publication of reasons in respect of Order 4 hereof.
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 Janzen & Naish has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
On 14 March 2024, a judge of the Federal Circuit and Family Court of Australia (Division 2) published reasons to explain the manner in which his Honour intended to determine causes of action between former spouses in respect of both their children and their property under Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”), but did not make any orders to actually do so.
At that time, his Honour did not pronounce any “judgment” determining the causes. Instead, the primary judge ordered the parties and the Independent Children’s Lawyer (“the ICL”) to bring in orders reflecting his Honour’s findings in respect of the children (Order 1) and ordered the parties to confer and bring in orders reflecting his Honour’s findings in respect of the property division (Orders 2 and 3).
Otherwise, his Honour ordered the wife’s lawyers (“the solicitors”) to pay 70 per cent of the husband’s costs, as agreed or taxed, but without specifying the basis upon which such costs were to be quantified (Order 5).
By a single Notice of Appeal filed on 11 April 2024, the wife and the solicitors purported to jointly appeal from Orders 3 and 5. Although the Notice of Appeal does not expressly say so, it may be inferred the wife appeals from Order 3 and the solicitors appeal from Order 5.
The appeal is anomalous for two reasons.
First, as a matter of procedure, two independent parties with separate grievances cannot combine their grievances within a single Notice of Appeal. Joint appeals by multiple appellants are only entertained when their appellate interests wholly align, which is not the case here. The solicitors have no interest in the orders made between the former spouses. They are only personally interested in Order 5, which imposes liability upon them rather than upon the wife to pay the husband’s costs. Not only are the interests of the solicitors and the wife not aligned on the issue of costs, they will prospectively be in direct conflict if the issue ultimately devolves to which of them should bear liability for the husband’ costs.
If the wife’s appeal from Order 3 was competent, which it is not, the solicitors could file a cross-appeal in the wife’s appeal (r 13.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), but could otherwise file their own appeal from Order 5.
Secondly, as a matter of substance, Order 3 is not a “judgment” from which the wife can validly appeal because it does not determine any substantive rights she enjoys under Pt VIII of the Act (s 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)). Appeals only lie from judgments, as embodied in the substantive orders made to determine the cause of action, but not from reasons published to explain how the cause of action should eventually be determined (Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64; Commonwealth v Bank of NSW (1949) 79 CLR 497 at 625).
The misconception of the appeal is evident from the pleaded grounds which attack findings expressed within the reasons and the overall adequacy of the reasons, when such findings and reasons have no connection at all with Order 3, which is simply a procedural direction.
On 24 April 2024, the primary judge pronounced “judgment” to finalise the financial cause between the parties and, on 3 May 2024, the wife appealed from that judgment, which appeal will be heard in due course. The “judgment” finalising the parenting cause is still yet to be pronounced.
The wife’s filing of two separate appeals exemplifies why the practice of judges directing parties to bring in orders reflecting the findings expressed in reasons published after a trial has been deprecated by the Full Court, as it falls short of the complete exercise of federal judicial power (Aitken & Aitken (2023) 66 Fam LR 314 at [28]–[36]; Lainhart & Ellison (2023) FLC 94-166 at [28], [58] and [59]).
The wife’s first appeal, filed on 11 April 2024, is incompetent and is amenable to summary dismissal pursuant to the power enshrined in the FCFCA Act (s 46(2)), which power may be exercised by a single judge exercising appellate jurisdiction (s 32(3) and s 32(5)).
The solicitors belatedly realised the problems besetting the first appeal and now wish to file an Amended Notice of Appeal substituting themselves as the sole appellants, bringing a challenge to only Order 5 made on 14 March 2024. Orders are made allowing them a short period of time within which to do so, in default of which the first appeal is entirely dismissed. They are now out of time to file a fresh appeal and would require the grant of leave to do so.
Subject to the solicitors filing an amended appeal as directed, the two appeals will be consolidated and are referred back to the appeal registrar for directions in due course.
The respondent’s application for costs is dismissed and he did not require the publication of any reasons for that decision.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 8 May 2024
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