Jenna & Jenna
[2024] FedCFamC1A 121
•19 July 2024
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 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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 JUDGMENTAUSTIN J:
The parties to this appellate proceeding are contesting underlying proceedings concerning their children and the division of their property pursuant to Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) respectively, which causes are now set down for trial in November 2024.
On 18 April 2024, the father filed an Amended Response seeking both interim and final substantive relief in respect of both causes of action.
About a month later, on 15 May 2024, the father filed an Application in a Proceeding seeking permission to file another interlocutory application for the summary grant of all the relief sought by him in the Amended Response, on both an interim and final basis. It may be observed at this point that the father had no need to seek or obtain permission to apply for summary judgment. He could apply for it whenever he wanted, which is not to say it would be granted.
The order sought by the father in his application was in these terms:
1.The [father] has leave to file and serve the Application in a Proceeding at Annexure A of this application.
If that application was granted, then the grant of summary relief for which the father intended to apply was in these terms:
The interlocutory orders sought are Orders sought on an urgent basis which are both interim and final. The orders are the summary orders of the Amended Response to Final Orders filed 18 April 2024…
The proceeding was already listed before the primary judge on 27 May 2024 for procedural directions and so, for convenience, the Application in a Proceeding was listed for return on that same day.
At that directions hearing, his Honour was ignorant of the interlocutory application having been listed, but then established it was listed only for directions rather than for hearing. The father continues to believe the interlocutory application was listed for hearing on its merits. Even if that is so, I am unable to understand how it makes any appreciable difference.
After foreshadowing an intention to list the proceeding for final trial over five days in November 2024, the primary judge invited submissions from the father as to why that should not occur. The father did not oppose the proceeding being listed for trial, but told his Honour he thought the trial would take longer than five days, though his Honour was not persuaded of that. It should be observed at this point that the father’s agreement to the proceeding being listed for final hearing on the merits was incompatible with his intended prosecution of an application for summary judgment.
The primary judge set the proceeding down for trial in November 2024 (Order 1), dismissed the father’s Application in a Proceeding (Order 2), and made a suite of procedural orders to ensure the readiness of the proceeding for the trial (Orders 3–17), though the latter orders were mis-numbered.
On 24 June 2024, the father filed a Notice of Appeal purporting to appeal from all orders made by the primary judge on 27 May 2024.
The appellate proceeding was listed on 19 July 2024 for the father to show cause why the appeal should not be summarily dismissed by a single judge of the Federal Circuit and Family Court of Australia (Division 1), as permitted by ss 32(3)(b), 32(5) and 46(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”).
After being given notice of that listing, the father amended the appeal six times by:
(a)an Amended Notice of Appeal filed on 1 July 2024;
(b)a Further Amended Notice of Appeal filed on 4 July 2024;
(c)a Still Further Amended Notice of Appeal filed on 8 July 2024;
(d)a Fourth Amended Notice of Appeal filed on 17 July 2024;
(e)a Fifth Amended Notice of Appeal filed on 18 July 2024; and
(f)a Sixth Amended Notice of Appeal dated 19 July 2024, but as yet unfiled.
The mother and the Independent Children’s Lawyer (“the ICL”) consented to the father’s reliance upon the Sixth Amended Notice of Appeal for the purpose of this hearing.
The appeal in its latest amended form is still brought, without any anterior application for leave to appeal, from all orders.
The appeal now comprises 29 grounds. Those which are comprehensible are entirely misconceived. Those which are incomprehensible are incompetent.
Adjournment application
The father initially sought an adjournment of this hearing so he could obtain legal advice and again amend the grounds of the appeal, which was opposed by both the mother and the ICL.
Evidently, the father has encountered some difficulty formulating his intended challenge to the orders made by the primary judge on 27 May 2024 without the benefit of legal representation, but that is a problem for him to solve. It is not the problem of the mother, the ICL or the Court. The father commenced the appeal knowing it would need to be prosecuted diligently. The Court is required to acquit its business as quickly, inexpensively and efficiently as possible (s 67(1)(b) of the FCFCA Act).
The asserted purpose of the adjournment was to push this hearing back by about a month until after the father participates in a mediation of other commercial litigation he is conducting against third parties before the Federal Court of Australia, in expectation that the mediation would result in the settlement of that litigation and his payment of money which he could then use to engage lawyers to represent him in this appeal.
The mother was doubtful the father’s expectations would be realised. She observed the father had already used about five different lawyers in the underlying family law proceedings and he had not previously disclosed the upcoming commercial mediation, so she lacked confidence he would be any better prepared a month hence. In effect, she and the ICL opposed the appeal proceeding being delayed just to enable the father to procure legal advice which, if competently given, will likely be to the effect that the appeal has no prospects of success. As the following discussion reveals, the appeal is wholly unmeritorious. Granting an adjournment of this hearing would be futile. The adjournment is refused.
Summary dismissal
The appeal should be summarily dismissed as it has no reasonable prospects of success.
Appeals only lie from “judgments” (s 26(1) of the FCFCA Act) and none of the many orders from which the appeal is brought constitutes a judgment for that purpose because none is in any way decisive of the parties’ legal rights (Commonwealth v Mullane (1961) 106 CLR 166 at 169).
Orders 3–17 are entirely procedural.
Order 1, which fixes the proceeding for trial in November 2024 rather than on some earlier or later dates, even if it is a “judgment”, is not one capable of being appealed (s 26(2)(b)(ii) of the FCFCA Act).
Order 2 dismissed the father’s application for permission to bring another application for the grant of summary judgment in his favour in respect of both causes of action. That order does not determine the father’s rights in any way because his rights under both Pt VII and Pt VIII of the Act remain intact and will be determined following the trial in November 2024.
Even assuming Order 2 is a “judgment” which could support an appeal, it was entirely proper for the application to be dismissed when the mother is actively contesting both causes of action. The father could not rationally contend she has no reasonable prospects of defending the parenting and financial relief for which he applies, in which event his intended application for summary judgment was misconceived. The ICL, who is an active participant in the parenting cause, also wanted the proceeding listed for trial, meaning she too opposed the father’s proposed application for summary judgment. The parties’ stout contest of the parenting and financial causes is precisely why the proceeding should desirably have been listed for trial as soon as it could be accommodated, as the primary judge did, allowing their respective applications to be thoroughly tested and finally determined.
The intended appeal from the order dismissing the father’s request for permission to bring an application for summary judgment requires an antecedent grant of leave to bring the appeal, at least in so far as it amounts to an interlocutory dismissal of the father’s application for summary financial relief. The father does not seek such leave to appeal in the Sixth Amended Notice of Appeal and therefore sets out no facts and circumstances which would satisfy the test for the grant of leave (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]).
Whether this appellate proceeding is properly considered to be an appeal, an application for leave to appeal, or a blend of both, the father’s amended grounds of appeal evince no merit. The grounds are pleaded over seven type-written pages, so they are not recited here.
When invited to explicate the grounds, the father was unable to do so satisfactorily.
Many grounds allege “corruption” and deceit on the part of the primary judge and registrars exercising original jurisdiction, but also by the appeal registrar exercising appellate jurisdiction (Grounds 1, 7, 9, 10, 11, 12, 13, 15, 16, 19, 20, 21, 22 and 29). The allegations are both bizarre and vexatious in the context of the dismissal of his interlocutory application within original jurisdiction and the procedural management of the appeal within appellate jurisdiction.
Other grounds allege the Court’s institutional corruption by aiding and abetting the fraud perpetrated by the mother, her “financial coercive control” of the father, and her “criminal custody and coercive control of the child” (Grounds 2, 3 and 4), which assertions are similarly vexatious.
To the extent that the grounds alleging corruption against the primary judge could be imputed to assert his Honour’s bias – either actual or ostensible – the father made no application at any point for his Honour’s disqualification, so any complaint of bias was waived (Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [76] and [79]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344, 357 and 360; Vakauta v Kelly (1989) 167 CLR 568 at 577–579 and 586–588).
The father contends such corruption has denied him the “presumption of innocence, procedural fairness and natural justice” (Ground 6). First, the complaint about the father’s denial of the “presumption of innocence” is entirely misguided, as the legal doctrine only applies in criminal proceedings and has no place in these civil proceedings. The primary judge did not and could not have purported to apply the doctrine when simply listing the proceeding for trial and dismissing the father’s interlocutory application. Secondly, the allied complaints of the father’s denial of procedural fairness and natural justice are unparticularised and he did not articulate in submissions the way in which he was allegedly so deprived. The dismissal of his interlocutory application without submissions being made about it made no difference when, first, he did not need the leave he was seeking and the application was otiose, and secondly, he consented to the proceeding being listed for hearing on the merits, which consent was incompatible with his intended future application for summary judgment.
Some grounds complain of the mother and other unidentified persons deceiving the father, thereby causing his financial detriment (Grounds 23, 24, 25, 26, 27 and 28), which complaints have nothing to do with any challenge to the validity of the orders made by the primary judge on 27 May 2024.
Some grounds complain of corruption by the father’s former lawyers in 2020 (Grounds 5 and 18), which complaints have nothing to do with any challenge to the validity of the orders made by the primary judge on 27 May 2024.
One ground appears to complain of legal error by the appeal registrar refusing to accept and file, in this appellate proceeding, his affidavit sworn on 1 July 2024 (Ground 14). However, the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) do not allow for any affidavit to be filed in appellate proceedings, unless it is filed in support of a valid interlocutory appellate application, which this affidavit was not.
Any implied assertion that this Court, exercising appellate jurisdiction, must now accept in evidence the affidavit recently sworn by the father on 1 July 2024 is rejected. If the appeal was to survive, the application to adduce further evidence in the appeal would have to be made in the orthodox way under s 35(b) of the FCFCA Act and it would be determined according to well established principles (CDJ v VAJ (1998) 197 CLR 172).
The ground which alleges the appeal relates to “the abuse of a child” and allegations of “family violence” is nonsense (Ground 8). The appeal relates only to the dismissal of an application by the father for permission to bring a summary judgment application and an order promptly listing the proceeding for final trial.
The ground which asserts the mother made an admission of some sort to the single expert who has been appointed in the parenting cause, to the extent that the grievance can be understood, is not a complaint of appealable error by the primary judge (Ground 17).
Even if one or more of the proposed grounds of appeal was ostensibly meritorious, the father could not demonstrate his experience of “substantial hardship” in him now having to contest the proceeding on the merits at the trial in November 2024, in which event the test for the grant of leave to appeal could not be met in respect of at least the interlocutory dismissal of his application for summary financial relief.
The intended appeal from the orders made by the primary judge has no reasonable prospects of success and is summarily dismissed.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 22 July 2024
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