Jenna & Jenna - [2024] FedCFamC1A 121

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Jenna & Jenna [2024] FedCFamC1A 121

Appeal from: Orders of 27 May 2024

Appeal number: NAA 155 of 2024

File number: SYC 5611 of 2020

Judgment of: AUSTIN J

Date of judgment: 19 July 2024

Catchwords: FAMILY LAW – APPEAL – Practice and procedure – Summary dismissal – Where the appellant was invited to show cause why the appeal should not be summarily dismissed – Where appeals only lie from judgments – Where none of the orders from which the appeal is brought constitutes a judgment – Appeal summarily dismissed.

Legislation:
Family Law Act 1975 (Cth) Pts VII, VIII

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 32, 35, 46, 67

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Number of paragraphs: 40

Date of hearing: 19 July 2024

Place: Newcastle (via Microsoft Teams)

The Appellant: Litigant in person

Solicitor for the Respondent: Barkus Doolan Winning

Counsel for the Independent Children's Lawyer: Ms Rebehy

Solicitor for the Independent Children's Lawyer: Chidiac Legal

ORDERS

NAA 155 of 2024
SYC 5611 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR JENNA

Appellant

AND:
MS JENNA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

19 JULY 2024

THE COURT ORDERS THAT:
1.Leave is granted to the appellant to file his Sixth Amended Notice of Appeal dated 19 July 2024.
2.The appellant’s application for an adjournment of the hearing is dismissed.
3.The Sixth Amended Notice of Appeal dated 19 July 2024 is summarily dismissed.
4.The application made by the Independent Children’s Lawyer against the appellant for costs of and incidental to this appeal is dismissed.

NOTATION:
A.The Independent Children’s Lawyer does not require the publication of reasons for 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 Jenna & Jenna has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

The parties to this appellate proceeding are contesting underlying…

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 Jenna & Jenna

Details

AGLC: Jenna & Jenna [2024] FedCFamC1A 121
Case: [2024] FedCFamC1A 121
Decision Date: 19 July 2024

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was asked to consider an appeal by Mr Jenna against decisions made in the Family Court concerning the custody and care of the parties' children. The appeal was brought against the orders made in the original proceedings, which were subject to the Family Law Act 1975 (Cth). The primary issue before the Court was whether the appeal was properly before it, given that none of the orders from which the appeal was brought constituted a judgment. The Court was also required to consider whether the appeal should be summarily dismissed for being frivolous or vexatious.

The Court found that the appeal was not properly before it because the appeal only lies from judgments, and none of the orders appealed against were judgments. The Court noted that the appeal was brought against various orders that were either interlocutory or procedural in nature, rather than final judgments. As such, the Court determined that the appeal should be summarily dismissed. The Court also dismissed the appellant's application for an adjournment of the hearing and the Independent Children’s Lawyer’s application for costs. The Court concluded that the appeal was frivolous and vexatious, and therefore, it was not in the interests of justice to allow it to proceed.

The Court granted leave for the appellant to file a Sixth Amended Notice of Appeal, but ultimately, the Sixth Amended Notice of Appeal was also summarily dismissed. The Court emphasised the importance of adhering to the legal requirements for an appeal to ensure that the Court's resources are not wasted on proceedings that have no real prospect of success. The Court's decision highlights the need for parties to carefully consider the grounds of appeal and to ensure that they are appealing from a judgment or order that is appealable under the Family Law Act 1975 (Cth).

Orders

Orders of the court

NAA 155 of 2024

SYC 5611 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR JENNA

Appellant

AND:

MS JENNA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

19 JULY 2024

THE COURT ORDERS THAT:

1. Leave is granted to the appellant to file his Sixth Amended Notice of Appeal dated 19 July 2024.

2. The appellant’s application for an adjournment of the hearing is dismissed.

3. The Sixth Amended Notice of Appeal dated 19 July 2024 is summarily dismissed.

4. The application made by the Independent Children’s Lawyer against the appellant for costs of and incidental to this appeal is dismissed.

NOTATION:

A. The Independent Children’s Lawyer does not require the publication of reasons for 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 155 of 2024 SYC 5611 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR JENNA Appellant
AND:	MS JENNA Respondent
INDEPENDENT CHILDREN'S LAWYER

Appeal from:		Orders of 27 May 2024
Appeal number:		NAA 155 of 2024
File number:	SYC 5611 of 2020
Judgment of:	AUSTIN J
Date of judgment:	19 July 2024
Catchwords:	FAMILY LAW – APPEAL – Practice and procedure – Summary dismissal – Where the appellant was invited to show cause why the appeal should not be summarily dismissed – Where appeals only lie from judgments – Where none of the orders from which the appeal is brought constitutes a judgment – Appeal summarily dismissed.
Legislation:	Family Law Act 1975 (Cth) Pts VII, VIII Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 32, 35, 46, 67 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited:	CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs:	40
Date of hearing:	19 July 2024
Place:	Newcastle (via Microsoft Teams)
The Appellant:	Litigant in person
Solicitor for the Respondent:	Barkus Doolan Winning
Counsel for the Independent Children's Lawyer:	Ms Rebehy
Solicitor for the Independent Children's Lawyer:	Chidiac Legal

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	19 JULY 2024