Judd & Romijn

Case [2024] FedCFamC1A 216

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 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

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)…

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AGLC
Judd & Romijn [2024] FedCFamC1A 216
Case
[2024] FedCFamC1A 216
Decision Date

CaseChat Overview and Summary

In the matter of Mr Judd v Ms Romijn, the father appealed final parenting orders made in his absence, which provided for the child to live with the mother and spend no time with him. The Federal Circuit and Family Court of Australia's appellate division was required to determine whether the appeal could proceed, given that the father had not exhausted the remedies available to him in the original jurisdiction before filing the appeal. Additionally, the court needed to assess whether the appeal had reasonable prospects of success.

The court noted that the father had not participated in the family report process and had failed to raise any appellate error in his grounds of appeal. The highest the grounds reached was a complaint of bias, which the father could not substantiate. The court further observed that the father had not exhausted his remedies in the original jurisdiction, as required by r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The father was given an opportunity to demonstrate why the appeal should not be dismissed on a summary basis, but he failed to do so. The court found that the appeal did not have reasonable prospects of success.

The appeal was dismissed on the grounds that the father had not exhausted the remedies available at first instance prior to filing the appeal and because there were no reasonable prospects of success. The court found that the father had not demonstrated any grounds for appellate error or substantiated any claim of bias. As a result, the appeal was summarily dismissed.

The court made an order dismissing the appeal. The dismissal was based on the father's failure to exhaust remedies in the original jurisdiction and the lack of reasonable prospects of success for the appeal. The order was made in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

NAA 290 of 2024

DNC 579 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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