Janzen & Naish - [2024] FedCFamC1A 75

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 2024

File 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 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Janzen & Naish

Details

AGLC: Janzen & Naish [2024] FedCFamC1A 75
Case: [2024] FedCFamC1A 75
Decision Date: 7 May 2024

CaseChat Overview and Summary

In the case of Janzen & Naish, Ms Janzen, the wife, appealed from orders made by the primary judge concerning the division of the parties' property and the making of orders in relation to their children. The appeal was heard by the Federal Circuit and Family Court of Australia in its appellate jurisdiction. The husband, Mr Naish, responded to the appeal, and the Independent Children's Lawyer also participated in the proceedings.

The court was required to decide several legal issues, including whether the appeal by Ms Janzen was competent and whether the joint appeal by her and her lawyers was valid. Additionally, the court considered the husband's application for costs and whether the orders appealed from finally determined the wife's substantive rights. The court needed to assess if the appeal could be summarily dismissed due to its incompetency.

The court determined that the appeal by Ms Janzen was incompetent as the orders she sought to appeal did not finally determine her substantive rights. Consequently, the appeal was summarily dismissed. The court also found that the joint appeal by Ms Janzen and her lawyers was not valid, as joint appeals by multiple appellants are only entertained when their interests wholly align. The court granted the lawyers a short period within which to file an amended notice of appeal as sole appellants. If this was not done, the appeal would be dismissed. The court dismissed the husband's application for costs.

The court ordered that Ms Janzen be discharged as a party to the appeal and that Grounds 1 to 6 in the Notice of Appeal be summarily dismissed. The lawyers were required to file and serve an amended notice of appeal by a specified date, focusing solely on a particular order. If this was not done, the appeal would be dismissed. The appeals were to be consolidated, and the matter was referred back to the appeal registrar for procedural directions. The husband's application for costs was dismissed.

Orders

Orders of the court

NAA 83 of 2024

NAA 106 of 2024

CAC 119 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 83 of 2024 NAA 106 of 2024 CAC 119 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS JANZEN First Appellant C LAW FIRM Second Appellant
AND:	MR NAISH Respondent
INDEPENDENT CHILDREN'S LAWYER

Appeal from:		Janzen & Naish [2024] FedCFamC2F 309
Appeal numbers:		NAA 83 of 2024 NAA 106 of 2024
File 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

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	7 MAY 2024