Judd & Romijn
[2024] FedCFamC1A 216
•14 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Judd & Romijn [2024] FedCFamC1A 216
Appeal from: Judd & Romijn [2024] FedCFamC1F 688 Appeal number: NAA 290 of 2024 File number: DNC 579 of 2021 Judgment of: CAMPTON J Date of judgment: 14 November 2024 Catchwords: FAMILY LAW – APPEAL – Where the father seeks to appeal from final parenting orders made in his absence basis providing for the child to live with the mother and spend no time with the father – Where the father did not exhaust his remedies in the original jurisdiction prior to filing the appeal pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the grounds of appeal do not assert appellate error – Where the matter has been listed for a show cause event providing the father with an opportunity to demonstrate why the appeal should not be dismissed on a summary basis – Where the highest the grounds reach is a complaint as to bias – Where the father could not articulate the basis of either apprehended or actual bias – Where the appeal is dismissed on the basis that the father did not exhaust the remedies available at first instance prior to filing the appeal and on the basis that there are no reasonable prospects of success – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII, Div 12A, s 60CC and s 69ZN
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32(3)(b), 32(5), 46(2), 46(3), 69
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Cases cited: Beale & Harvie [2023] FedCFamC1A 181
Cooke & Morton (2018) FLC 93-820; [2018] FamCAFC 9
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lorde & Chu [2014] FamCAFC 228
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Nellie & Nellie [2024] FedCFamC1A 171
Re Darley (No 2) (2023) 379 FLR 234; [2023] FedCFamC1A 112
Saha & Lahiri (No 3) (2023) FLC 94-158; [2023] FedCFamC1A 144
Number of paragraphs: 28 Date of hearing: 14 November 2024 Counsel for the Appellant: Litigant in person Solicitor for the Respondent: Ms Gray, Grays Legal NT ORDERS
NAA 290 of 2024
DNC 579 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR JUDD
Appellant
AND: MS ROMIJN
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
14 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The appeal is summarily dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Judd & Romijn has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
By way of a Notice of Appeal filed on 5 November 2024, Mr Judd (“the father”) appeals from orders made in his absence on 8 October 2024 as to the parenting of the child of he and Ms Romijn (“the mother”), X, born in 2019 (“the child”) by a judge of the Federal Circuit and Family Court of Australia (Division 1).
The orders under challenge provide:
1.That the mother have sole parental responsibility for [the child] born […] 2019, the child.
2. That the child shall live with the [mother].
3. That the child shall not spend any time with the [father].
4.That pursuant to s 68B(1) of the Family Law Act 1975 that […] the father of [the child] born […] 2019 shall be restrained and injuncted from:
(a)Contacting or communicating with [the mother] and [the child] directly or indirectly except in accordance with court orders;
(b)Entering or remaining at any place that [the mother] is living, staying or working;
(c)Entering or remaining at any place that [the child] is living, staying or located;
(d)Contacting or communicating with a work colleague of [the mother];
(e)Contacting or communicating with a member of [the mother’s] family.
5. That the proceedings be dismissed as finalised.
The Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) enables the summary dismissal of appeals if they have no reasonable prospect of success even if it is not hopeless or bound to fail (ss 46(2) and 46(3)). The dismissal power may be exercised by a single judge (ss 32(3)(b) and 32(5)).
The appeal was listed today to afford the father the opportunity to make submissions about why the appeal should not be summarily dismissed in circumstances where there are deficiencies in the appeal.
For the reasons that follow, because the father has not exhausted his remedies available at first instance and because the father cannot demonstrate that the appeal has any reasonable prospect of success, the appeal will be dismissed.
BACKGROUND
In early 2020 the father pleaded guilty of one count of aggravated assault perpetrated against the mother. At some unknown time, the mother was named as the protected person in a domestic violence order made against the father.
On 30 November 2021 the father commenced proceedings as to the parenting of the child, who, at that time, had just turned two years of age.
On 15 December 2022 a Family Report was prepared by the Family Report writer. The father did not participate in the process with the Family Report writer. The reasons of the primary judge record:
12…Ultimately, [the Family Report writer] came to the considered view and made a range of recommendations as to the appropriate parenting arrangements for the child. Significantly, [the Family Report writer] formed the view that the mother ought to be granted sole parental responsibility for the child and that orders ought to be made providing for the child to live with the mother; noting that the mother has always been the primary carer for the child. [the Family Report writer] did not support the father's application for equal time spending. Indeed, [the Family Report writer] considered that any prospect of time spending between the father and the child should be approached with great caution. The reasons for this are multivarious and include matters pertaining to significant family violence perpetrated by the father against the mother, the father's parenting capacity, mental health and other issues.
The matter was listed for final hearing before Riethmuller J in 2023. The trial did not proceed because the father was incarcerated. The primary judge recorded that, “[s]ince that time, the proceedings have been, effectively, in abeyance, awaiting the father’s release from custody and a new trial listing” (at [2]).
In mid-2024 the father travelled to Country B. He remains in Country B as at the hearing today.
On 4 September 2024 the parties undertook a judicial settlement conference with McClelland DCJ. The proceedings did not compromise. Deputy Chief Justice McClelland made an order listing the proceedings for case management before the primary judge, on 18 September 2024. On 12 September 2024, the father appeared by way of audio-visual link from Country B. A judicial registrar made orders confirming the case management hearing listing before the primary judge on 18 September 2024 and for the parties to each file documents to ensure the preparation of the matter for its listing for final hearing.
At the case management hearing before the primary judge on 18 September 2024, the mother and her legal representatives appeared in person, and the father appeared by way of audio-visual link from Country B. The father was unable to indicate when he might return to Australia for the purpose of the final hearing (at [5]). He was directed to file an affidavit on or before 4.00 pm on 2 October 2024, setting out the current circumstances of his travel to Country B, when he proposed to return to Australia, the status of his Australian visa, and his ability to return to Australia. The proceeding was adjourned to 8 October 2024.
The father’s affidavit filed on 2 October 2024 set out his final and interlocutory orders sought. He said that he was “unable to decide the date” of his return to Australia due to his father’s medical condition. A document from Department of Foreign Affairs and Trade identified his “provisional residency”, permitting him to travel to and from Australia until expiry in 2044. The father did not comply with the orders made on 12 September 2024 until 4 October 2024.
The father did not appear on 8 October 2024. The ex tempore reasons of the primary judge, while not expressed as an order, record the striking out the father’s Initiating Application pursuant to s 69 of the FCFCOA Act, citing significant default in complying with procedural orders and finding that that the father was “not prosecuting these proceedings with due diligence” (at [11]) or “in any meaningful way” (at [20]). The primary judge considered that it was not in the child’s best interests for the proceedings to be “protracted and drawn out inordinately and indefinitely” (at [19]). The reasons provide a cogent explanation as to the matters considered in the proceeding as against the father in his absence and for the matter to proceed on an undefended basis. An evaluation of relevant factors pursuant to s 60CC of the Family Law Act 1975 (Cth) (“the Act”), so as to promote the best interests of the child, directed the conclusion to the orders being made under challenge on appeal.
THE FAILURE OF THE APELLANT TO EXHAUST REMEDIES AVAILABLE AT FIRST INSTANCE
Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides as follows:
(1) The court may at any time vary or set aside an order, if:
(a) it was made in the absence of a party…
The father was advised as to the content of that rule today. He was unaware of the rule until today. The father says that he wants the proceeding brought back to court for a trial. He could, by application to the Federal Circuit and Family Court of Australia (Division 1) in its original jurisdiction pursuant to r 10.13(1)(a), challenge the orders made 8 October 2024 made in his absence. Such challenge, if made and successful, would render this appeal nugatory.
While this appellate Court has jurisdiction to entertain an appeal from the orders under challenge, that jurisdiction ought not to be too readily exercised in these circumstances where the proper course, being to exhaust remedies available in the original court, is open (see Cooke & Morton (2018) FLC 93-820 at [13] citing Lorde & Chu [2014] FamCAFC 228 (“Lorde & Chu”)). The Full Court in Saha & Lahiri (No 3) (2023) FLC 94-158 endorsed the approach in Lorde & Chu:
143We consider the reasons provided by the primary judge on 13 February 2023, to have been inadequate. However, that finding is not of itself determinative. That is because subsequent to the 13 February 2023 judgment, the wife exercised her right to apply to have the orders set aside, which the Full Court in Lorde and Chu endorsed as the appropriate course before a party appeals against an order made in their absence.
(Emphasis added) (Footnotes omitted)
In Beale & Harvie [2023] FedCFamC1A 181 at [15], Austin J resonated these sentiments when summarily dismissing an appeal in circumstances where, notwithstanding its lack of reasonable prospects of success, the appellant had commenced the appeal without exhausting their remedies at first instance. Significant public policy reasons are self-evident requiring parties to take a course which is “more appropriate, and far less expensive” (Re Darley (No 2) (2023) 379 FLR 234 at [55]). The Full Court again confirmed that principle in Nellie & Nellie [2024] FedCFamC1A 171 (at [58]).
In so far as the father’s submissions made today echoed an asserted complaint as to a denial of procedural fairness, those submissions carry little weight in circumstances where the father did not follow the proper procedural steps before filing his Notice of Appeal. Logically, any complaint as to a denial of procedural fairness in the conduct of the hearing on 8 October 2024 would not appear competent on appeal in circumstances where the father has not availed himself of the opportunity to advance his case pursuant to r 10.13(a) in the original jurisdiction. Consistent with authority, the appeal will be dismissed, noting that no time limit is specified in r 10.13 and there is no foreclosure of, or impediment to, the father applying to revisit the orders under challenge.
A consideration of the reasonable prospects of success of the appeal achieves the same conclusion.
THE NOTICE OF APPEAL
The Notice of Appeal filed by the father on 5 November 2024 records five grounds of appeal. Grounds 1–4 do no more than record each of Orders 1–4 as made by the primary judge followed by an incomprehensible historical commentary by way of rebuttal to each order. Submissions made by the father today in support of Grounds 1–4 comprised a series of complaints as to the mother’s parenting. Grounds 1–4 are not proper grounds of appeal. They do not articulate any form of appellate error of the kind identified in House v The King (1936) 55 CLR 499 or any other recognised appellate error as to judicial process or procedure. These grounds are incompetent.
At its highest, the ground as articulated in response to Order 5 includes a broad contention as to bias. It records:
5. That the proceedings be dismissed as finalised -
Grounds: THE [FATHER] HAD INFORMED THE COURT THAT HE IS IN [COUNTRY B] DUE TO HIS FATHER'S HEALTH. HE WAS NOT IN A POSITION TO ATTEND VIA WEBEX ON 08 OCTOBER 2024 AS HE HAD RECEIVED HIS MOTHER'S CALL FROM THE HOSPITAL THAT HIS FATHER'S HEALTH CONDITION WAS CRITICAL. THE [FATHER] HAD TO BE NEAR HIS FATHER'S DEATH BED AT THAT TIME. THE [FATHER’S] FATHER LATER PASSED AWAY. HE DIED HEART BROKEN AS HE AT NO TIME IN HIS LIFE SEEN HIS ONLY GRANDCHILD FROM HIS ONLY CHILD AND THAT WAS HIS LAST WISH WHICH THE [MOTHER] HAD CAUSED NOT TO LET HIM FULFIL. THE [FATHER] HAD AT ALL DATES PRESENTED HIMSELF FOR THE PROCEEDINGS EXCEPT FOR THIS DATE OF 08 OCTOBER 2024 DUE TO HIS SITUATION AND HAD COMPLIED WITH ORDERS AND HAD BEEN PRESENT ON ALL DATES FROM 2021 UP TO SENDING AFFIDAVIT TO THE ASSOCIATE OF [THE PRIMARY JUDGE] ON VIA EMAIL 16 SEPTEMBER 2024 AS BEING IN [COUNTRY B] HE COULD NOT GET IT REMOTELY WITNESSED AS PER INFORMATION AVAILABLE ON THE INTERNET THAT NT DID NOT HAVE MEANS OF REMOTE WITNESSING AS [sic] MENTIONED IT IN THE EMAIL TO THE ASSOCIATE AND ON THE MENTION OF 18 SEPTEMBER 2024 TO [THE PRIMARY JUDGE], ALSO HAD ATTACHED [sic] THE COPY ON ISSUES IN DISPUTE. IT SHOULD BE NOTED THAT ON 18 SEPTEMBER THE [MOTHER] HAD NOT COMPLIED BY THE ORDER. ON 08 OCTOBER 2024 THE [MOTHER’S] LAWYER HAD NOT BEEN PRESENT AT THE EXACT TIME OF COURT APPEARANCE AND HAD SENT AN EMAIL TO THE ASSOCIATE STATING SHE WOULD BE LATE AND WAS GRANTED PERMISSION FOR THE SAME AND HER PRESENCE WAS ACKNOWLEDGED WHICH CAN BE CONSIDERED AN ACT OF INJUSTICE, PARTIALITY AND FAVORITISM.
THE [FATHER] HAD STATED IN COURT AND THROUGH AFFIDAVITS THAT HE WAS NOT IN A POSITION TO SEEK LEGAL ADVICE IN THIS MATTER AS HE WAS IN [COUNTRY B] AND THAT THE NTLAC HAD GRANTED HIM A GRANT WITH LEGAL REPRESENTATION/COUNSEL ONCE THE TRIAL DATE WAS SET BY THE COURT, WHICH WAS NEVER MADE. THERE WERE NO DATES OR NOTICE FROM THE COURT BETWEEN 4 NOVEMBER 2023 TO 28 JULY 2024 IN THIS MATTER WHILE THE [FATHER] WAS DOMICILED AT ALL TIMES IN AUSTRALIA. ON 18 SEPTEMBER 2024 THE COURT HAD ASKED THE [FATHER] TO PROVE HIS ABILITY TO RETURN BACK TO AUSTRALIA WHICH HE HAD PROVIDED AND ALSO HAD MENTIONED THAT HE WAS UNABLE TO SAY WHEN HE WOULD RETURN DUE TO HIS FATHER'S CARE AND TREATMENT. THE FINAL ORDERS BEING MADE AND APPLICATION DISMISSED IN THE ABSENCE OF THE [FATHER] DUE TO HIS SITUATION AND THAT TOO DURING A MENTION AND CASE MANAGEMENT IS INJUSTICE AND NO INDICATION WAS STATED IN THE ORDER OF 08 OCTOBER2024 FOR FILING A NEW APPLICATION CONTRARY TO WHAT WAS STATED IN THE ORDER OF 18 SEPTEMBER 2024. A PROPER TRIAL BE HELD AND NEW DOCUMENTS THAT WERE MENTIONED IN THE AFFIDAVIT OF 02 OCTOBER 2024 OF [sic] THE [FATHER] ALSO BE HEARD.
Two assertions of bias may be made in the ground. The first is that the mother received accommodations from the primary judge, in that she had not complied with the orders made on 18 September 2024, and the father did not receive the same accommodation. The second is that the mother’s lawyers had not been present at the exact time of the listing of the matter on that day, being “granted permission” to attend the hearing late, the father not achieving a similar indulgence in failing to appear on 8 October 2024. The ground asserts these matters “can be considered an act of injustice, partiality and favouritism [sic]”.
During the hearing today the father was invited to expand on his assertions as to bias. He could not engage was to whether the complaint of the primary judge’s alleged bias was actual or apprehended, which is a significant lacuna when the tests for each are quite different. The lack of precision about the nature of the alleged bias tends to deprive the allegation of any force because the different tests cannot be conflated (Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427). The gravamen of the father’s complaint today is that he “did not understand” how the matter came to be determined on 8 October 2024, or why the orders under challenge were made on that day.
The role of the primary judge in child-related proceedings is guided by Div 12A of Pt VII of the Act. The mandatory principles for the conduct of child-related proceedings include that the court is to actively direct, control and manage the conduct of the proceeding, to ensure it is conducted in a way that will promote child-focused parenting by the parties with as little formality, legal technicality, and form as possible (s 69ZN of the Act).
The primary judge provided cogent reasons for determining the matter in the absence of the father, focused on the objects of Div 12A and promoting the child’s best interests, including that the litigation be concluded. There was no “prejudgment”, and hence there could neither be an actuality or apprehension of bias.
The father has been given the opportunity to show cause as to how the appeal has any reasonable prospect of success. He has been unable to do so.
CONCLUSION
The appeal is summarily dismissed because the appellant father has not exhausted his remedies available in the original jurisdiction prior to filing the appeal and because the appeal does not enjoy reasonable prospects of success.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 14 November 2024
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