Kantor & Jeong

[2021] FedCFamC1A 48

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Kantor & Jeong [2021] FedCFamC1A 48  

Appeal from:

Jeong & Kantor [2021] FedCFamC2F 24

Appeal number(s):

NAA 32 of 2021

File number(s):

BRC 1055 of 2019

Judgment of:

AUSTIN J

Date of judgment:

3 November 2021

Catchwords:

 FAMILY LAW – APPEAL – Practice and Procedure – Where the grounds of appeal as presently pleaded do not fall within the available grounds of appeal from a discretionary judgment – Where the appeal was listed to allow the appellant to be heard about why the incompetent grounds of appeal should not be struck out – Where the grounds are struck out – Where in default of an Amended Notice of Appeal being filed within 28 days, the appeal is summarily dismissed.

Legislation:

Family Law Act 1975 (Cth) Pt VII

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 69(4)(b)

Cases cited:

House v The King (1936) 55 CLR 499; [1936] HCA 40

Number of paragraphs:

11

Date of hearing:

3 November 2021

Place:

Newcastle (via video link)

The Appellant:

Litigant in Person

Solicitor for the Respondent:

Legal Aid Qld

ORDERS

NAA 32 of 2021
BRC 1055 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR KANTOR

Appellant

AND:

MS JEONG

Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	3 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The grounds of appeal contained within the Notice of Appeal filed on 6 October 2021 are struck out and, in default of an Amended Notice of Appeal being filed within 28 days, 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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kantor & Jeong has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. On 8 September 2021, a judge of the Federal Circuit and Family Court of Australia (Division 2) made orders to finally determine proceedings between the appellant father and respondent mother under Pt VII of the Family Law Act 1975 (Cth) in respect of their four children, then aged between 12 and five years.

2. The orders essentially made provision for the parties to have equal shared parental responsibility for the children, for the children to live with the mother, and for them to spend substantial time and to communicate regularly with the father.

3. The father appealed from those orders by Notice of Appeal filed on 6 October 2021.

4. The father was not legally represented at the hearing and, evidently, the Notice of Appeal was also prepared by him without any legal advice or help. The grounds of appeal are stated as follows:

   I need to appeal the multiple mistakes that have been made in judgement and explanation of judgement.

   Dr M’s summary and conclusions need to be taken into account for the children’s safety, well being and duty of care!

   The police have had to attend the mother’s residence on multiple occasions!

   My daughter [name]’s wellbeing is paramount. Judge [name] has labelled her as the trouble-maker despite evidence to the contrary. [Child]’s safety and well being depends on this!

   In fact, all the children’s wellbeing does.

   Judge [name] has made many wrongfull assumptions that need to be corrected. I have much evidence to support this appeal. Please put the children’s safety first.

   This is all truth, so help me god.

   Ever since Trial, the police have attended multiple times due to the mother’s physical altercations with my daughter.

   Judge [name] wrongfully assumes that the physical discipline and altercations have stopped!

   (As per the original)

5. In addition to the above comments and complaints which purport to be “grounds of appeal”, the father annexed to the Notice of Appeal some 44 pages of handwritten commentary upon the individual appealed orders and the paragraphs of the primary judge’s reasons for judgment.

6. Because the appealed orders are the product of an exercise of discretion by the primary judge, the available grounds of appeal from the judgment are those identified by the High Court of Australia in House v The King (1936) 55 CLR 499 at 504–505, namely: acting upon wrong principle, allowing extraneous or irrelevant considerations to influence the judgment, mistaking the facts, failing to take a material consideration into account, or reaching a decision which is unreasonable or plainly unjust.

7. As can be seen from the content of the Notice of Appeal, no matter how generously the father’s narrative can be construed, it cannot be characterised as being one or more grounds of appeal within the recognised categories established by the High Court. Dissatisfaction with a judgment is not, of itself, a ground of appeal.

8. To afford the father procedural fairness, the appeal was listed before me to allow him to be heard about why the incompetent grounds of appeal should not be struck out and he be required to file an Amended Notice of Appeal containing proper grounds of appeal within a given time frame, with the appeal to be summarily dismissed in default of compliance.

9. When given the chance, the father could not clearly articulate his complaints about the judgment. The appeal cannot be allowed to progress in the form of a general lament, for otherwise the mother will suffer the prejudice of not knowing how to meet the appeal. The grounds of appeal, which are clearly incompetent, are therefore struck out pursuant to s 69(4)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). To be clear, the appeal is not yet summarily dismissed.

10. Now the father is armed with some knowledge of the strictures confining the appeal, he should be allowed a short but sufficient period of time within which to re-formulate any allegations of appealable error he wishes to prosecute. A period of 28 days is appropriate.

11. In default of compliance, the appeal will be summarily dismissed, as it has no reasonable prospect of success in its current form. Provided the father re-pleads the appeal grounds in proper form within the time prescribed, he may proceed with the appeal.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       3 November 2021