Leone & Cino
[2016] FamCAFC 224
•8 November 2016
FAMILY COURT OF AUSTRALIA
| LEONE & CINO | [2016] FamCAFC 224 |
| FAMILY LAW – APPEAL – DISMISSAL – Consideration of whether the appeal should be dismissed pursuant to s 96AA(1) of the Family Law Act 1975 (Cth) for having no reasonable prospect of success – Appeal dismissed. |
| Family Law Act 1975 (Cth), s 96AA(1) |
| Spencer v The Commonwealth of Australia (2010) 241 CLR 118 |
| APPELLANT: | Mr Leone |
| RESPONDENT: | Ms Cino |
| FILE NUMBER: | MLC | 3172 | of | 2013 |
| APPEAL NUMBER: | SOA | 78 | of | 2015 |
| DATE DELIVERED: | 8 November 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bryant CJ, Ryan and Murphy JJ |
| HEARING DATE: | 9 May 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 December 2015 |
| LOWER COURT MNC: | [2015] FamCA 1221 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | No appearance |
Orders
The appeal filed 21 December 2015 and amended on 24 March 2016 be dismissed.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Leone & Cino has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 78 of 2015
File Number: MLC 3172 of 2013
| Mr Leone |
Appellant
And
| Ms Cino |
Respondent
REASONS FOR JUDGMENT
The appeal filed by Mr Leone (“the husband”) on 21 December 2015 and amended on 24 March 2016 was listed before the Full Court for consideration as to whether it should be dismissed pursuant to s 96AA(1) of the Family Law Act 1975 (Cth) (“the Act”).
The appeal was brought against orders made on 18 December 2015 by Johns J in relation to proceedings involving parenting and property issues. Relevantly, as will become apparent, the husband had not participated in the final hearing before her Honour resulting in the orders under appeal.
Following the filing of the notice of appeal, on 23 December 2015 the Appeal Registrar wrote to the husband suggesting he seek legal advice in relation to two issues:
1.His options regarding the filing of an application in a case at first instance given his non-participation in the hearing resulting in the orders appealed; and
2.The filing of an amended notice of appeal because the grounds contained in the notice of appeal did not assert any error.
The husband was also advised in that letter to file and serve a draft appeal book index by 18 January 2016, which he did.
On 1 March 2016 the Appeal Registrar wrote to the husband advising of the adjournment of a procedural hearing. The Registrar again suggested that the husband should seek legal advice as the notice of appeal did not identify any errors of fact and/or law. The husband was directed to file any amended notice of appeal by 25 March 2016 and the terms of s 96AA(1) of the Act were brought to his attention.
On 24 March 2016 the husband filed amended grounds of appeal.
Following a directions hearing on 31 March 2016, which the husband attended, the Appeal Registrar listed the matter before the Full Court for consideration of dismissal of the appeal pursuant to s 96AA(1). That section provides for the dismissal of an appeal where, having regard to the grounds of appeal, it appears to the court that the appeal has no reasonable prospect of success.
Section 96AA(1) relevantly provides:
If:
(a) an appeal has been instituted in a court under this Part; and
(b) having regard to the grounds of appeal as disclosed in the notice of appeal, it appears to the court that the appeal has no reasonable prospect of success (whether generally or in relation to a particular ground of appeal);
the court may, at any time, order that the proceedings on the appeal be dismissed (either generally or in relation to that ground).
The section envisages that it can be invoked by the court’s own motion, as it has been in this case.
At the hearing before us the husband appeared in person and opposed the dismissal of the appeal. There was no appearance by the respondent, Ms Cino (“the wife”).
The independent children’s lawyer (“ICL”) confirmed their non-participation in the appeal by letter to the Appeal Registrar dated 25 February 2016.
Orders under appeal
Before turning to the notice of appeal itself, it is necessary to provide some detail as to the orders made on 18 December 2015 in respect of which the appeal has been filed.
The parenting orders provided for the discharge of all previous parenting orders and gave the wife sole parental responsibility for the parties’ two children. The orders further provided that the children live with the wife and spend no time with the husband. There were some ancillary parenting orders but the orders outlined represent the gravamen of the parenting orders made by the primary judge.
As far as property settlement was concerned, there had been a previous interlocutory order for the sale of the former matrimonial home but no final orders determining the rights of the parties under s 79 of the Act. The orders can be seen as being made by way of enforcement/facilitation of the previous order for sale. The orders provided:
·The wife be appointed trustee for sale of the former matrimonial home;
·The wife sell the property in her capacity as trustee and pay any costs associated with the cost of sale and discharge of the mortgage; and
·The husband vacate the property.
Other facilitative orders were made but again no final order determining the disposition of the parties’ property was made. Given that no final orders dealing with the property of the parties had been made, the orders can clearly be seen to be interlocutory and leave to appeal would be necessary. No leave was sought.
Importantly, for the disposition of the matter before us, as we have set out above, the orders made by the primary judge were made in the absence of the husband. The manner in which this came about is instructive.
The husband filed a notice of discontinuance on 13 October 2015 in which he sought to discontinue the whole of his initiating application filed on 23 April 2013. At [3] of her reasons for judgment, the primary judge said:
3.In addition to filing the Notice of Discontinuance, on 13 October 2015 the husband also filed an affidavit affirmed that day. The husband deposed in that affidavit as follows:-
1.I [Mr Leone] of the family [Leone] being a sovereign and free man under God, am hereby writing this letter to formally remind and reconfirm to the court of my oral and written withdrawal of my participation in this matter on the 28th August 2015. Therefore anything prior to, on, or after that date with relation to these proceedings is null and void.
2.This affidavit is further confirmation that I do not consent to participate in these proceedings.
3.I am not under any contract that binds me to the Municipal Corporation which identifies itself as the Federal Court and the Family Law Courts.
4.I do not consent to any application or request for me to attend court or participate in proceedings, and any attempt to drag me into court or bind me into proceedings will initiate a claim for damages under common law, against any party who has initiated or made that application or request on, of, or against me.
5.I am not bound by any valid social contract to any of the parties or Municipal Corporation which obligates me to participate in their masquerades, such as and including these purported court proceedings.
6.Any contracts that I was fraudulently induced into entering or forced into entering, by any parties, or Municipal Corporations, such as the Federal Court, Family Law Court or Magistrates Court etc, are hereby declared to be void, invalid and of no lawful effect, because I was not provided full disclosure of the actual relevant details of the contract, or the details of the party purporting to contract with me.
7.On the 28th August 2015 I formally advised the Court that I discontinued these proceedings and a notice of discontinuance has been filed on this day with the court.
The primary judge then set out:
5.Notwithstanding the documents filed on behalf of the husband, at the commencement of the hearing I was informed by counsel appearing for the wife and the Independent Children’s Lawyer (“the ICL”) that an associate of the husband attended Court that morning and served upon them further correspondence purportedly from the husband. That correspondence was tendered on behalf of the wife and is Exhibit A1. Exhibit A1 is a letter from the husband addressed to me, my associate, the ICL, the wife’s solicitor and an employee solicitor of the offices of the ICL.
6.That letter confirms the filing by the husband of the Notice of Discontinuance on 13 October 2015. The letter then sets out the relevant provisions of r 10.11 of the Family Law Rules 2004 (Cth) (“the Rules”) regarding discontinuing a case, asserting that:-
… as no application for costs has been made by any of the parties, as of 28 days after the Notice of Discontinuance was filed with the Court and served on all the parties… then the matter is thereby terminated, and all applications in that case are closed indefinitely as of the expiry of the 28 day period ending at close of Court business on the 10th day of November 2015.
7. The letter then notes as follows:-
I understand that the matter is listed for hearing on 12th and 13th November 2015, for defended hearing before Justice Johns, however as the case has been Discontinued on the 13th day of October 2015, by the Applicant, there is no need for the Defended hearing to proceed; and so the hearing dates of the 12th and 13th of November must be vacated indefinitely.
Any basis for a contested hearing has been dissolved.
8.The assertions contained in that correspondence are misconceived. Although the letter recites r 10.11(3) of the Rules it appears to ignore the import of that provision. Rule 10.11(3) provides as follows:-
Discontinuance of a case by a party does not discontinue any other party’s case.
9.The wife has before the Court her Amended Response to Initiating Application filed 10 February 2015 in which she seeks final orders with respect to both parenting matters and financial matters. The wife now seeks to proceed with the hearing of those applications. The discontinuance by the husband of his Initiating Application does not preclude the wife from seeking final orders in respect of those issues.
The primary judge then proceeded to deal with the case on the evidence before her, both in relation to the parenting and property proceedings and made the orders which we have explained above.
We note here that insofar as the property proceedings were concerned, the wife only sought orders facilitating the sale of the former matrimonial home and that the issue of how proceeds of any such sale might be distributed be adjourned until such time as the sale price was known.
Relevant background
The parties were married in 2007, separated in September 2012 and were divorced in July 2014. They have two daughters, B who was six years at the hearing before the primary judge and C, who was five years.
On 23 April 2013 the husband filed an initiating application. The wife filed a response to that application in June 2013.
On 22 May 2013 interim orders were made by consent for the husband to spend supervised time with the children. Further interim orders for supervised time were made in December 2013. Those orders provided for the children to spend six hours each alternate weekend with the husband under supervision.
The final hearing was due to commence before the primary judge on 25 May 2015. That date had to be vacated and on 14 August 2015 the matter was listed for final hearing on 7 September 2015. On 28 August 2015 the matter came before her Honour for mention and the husband made an application that the primary judge disqualify herself, that the ICL be prohibited from relying upon the evidence of two experts and that a further family report be prepared. After hearing submissions from all parties, the primary judge dismissed each of those applications.
The husband appealed those orders by notice of appeal filed 4 September 2015 and pending the outcome of that appeal, the primary judge stayed the hearing of the parties’ applications for final orders on the condition that the husband do all acts and things to prosecute his appeal expeditiously. The husband’s appeal was listed in October 2015 but was struck out because of his failure to file the required appeal books.
On 13 October 2015 the husband filed the notice of discontinuance which we have described at [17].
On 22 October 2015 the primary judge made orders listing the final hearing on 12 November 2015 with directions for the filing of material, including that of the expert witnesses.
The hearing ultimately proceeded as an undefended hearing on 12 November 2015. On 18 December 2015 the primary judge made the orders the husband now seeks to appeal.
The parties have also engaged in proceedings in the Magistrates’ Court of Victoria, which the primary judge described thus:
23.…as a result of the wife’s application for intervention orders against the husband, and charges arising from the husband’s alleged breach of intervention orders made against him. A final intervention order was made against the husband in favour of the wife in October 2014. That intervention order expires [in] October 2019.
Within the context of this background we now turn to consider whether or not the husband’s appeal should be dismissed.
Dismissal pursuant to s 96AA(1)
The husband’s original grounds of appeal, as contained in his notice of appeal filed on 21 December 2015 are:
1.I am appealing order “1” on the grounds that the discharge gives me no access.
2.I have been negated totally, regarding the welfare and development of my children.
3.Order 4 denies me all access to the children.
4.Order 5 – that I am denied all relevant information pertaining to my children.
5.Order 7 allows me no access no, no contact, no information.
6.Order 9 – I have been striped [sic] of my property and assets and I have no income.
7.Order 10 – I believe that this disallows me access or participation in discussions pertaining to any arrangement regarding my entitlements.
8.Gives me no access nor opportunity to participate in a properly set out arrangement pertaining to sale of my personal property and assets.
As can be seen, the grounds contained in the husband’s notice of appeal did not, on their face, identify an appealable error and simply contained statements of fact or assertion as to the effect of the orders he seeks to challenge. As set out above, on 23 December 2015 the Appeal Registrar wrote to the husband suggesting he may want to consider filing an amended notice of appeal. On
24 March 2016 the husband filed a document outlining his amended grounds of appeal. That document sets out 10 numbered grounds as well as a number of other complaints.
In the main, the amended grounds, which we discuss in detail below, rely upon the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) and to that extent are entirely misconceived.
At the brief hearing before us, the husband essentially conceded the inadequacy of his grounds. He informed us that he had received legal advice. He asked that the court not dismiss his appeal on the basis that he accepted the appeal could not be brought under the ADJR Act and he wanted an opportunity to further amend his grounds of appeal.
There are considerable impediments to the husband’s request to further amend the grounds of appeal, even if he had legal advice in assisting him to do so.
The first is that in the knowledge of the appeal having been listed for consideration of whether it should be dismissed, the husband had not attempted to recast the grounds in a manner that might give confidence that he would, or could, present arguable grounds at any point.
However, even allowing for the possibility that the husband could recast the grounds in an intelligible way, a consideration of the grounds as they presently stand and what underlies them, leads us to the view that any further indulgence to the husband is not warranted and we intend to dismiss the appeal pursuant to s 96AA(1) for the following reasons. We do so conscious of the fact that parenting orders by which one party is to have no contact with their children are significant orders affecting the rights of a party (and the children) and an order which would have the effect of removing the right of appeal should not be made lightly.
Amended grounds of appeal filed 24 March 2016
The amended grounds set out below are as they appear in the husband’s document filed 24 March 2016.
Ground 1
1.Her Honour erred by finding that the discharge of previous parenting orders gives No access to the children to any extent or any relationship/communication with the father supervisor or otherwise.
This ground appears to simply complain that her Honour erred in discharging the previous parenting orders and does not indicate any appealable error.
Grounds 2, 4, 5, 6, 7 and 9
2.Im appealing this point Pursuant to section 5 Administrative judicial review act 1977 (1) (a) (b) (c) (d) (e) (f) (g) (h) (j).
…
4.Her Honour erred by finding the husband’s applications for orders dismissed, and the orders made on the 18th December 2015 in chamber by her honour Justice Johns, I’m appealing this point Pursuant to section 5 Administrative judicial review act 1977 (1) (a) (b) (g) (h).
5.In order for the power to be dismissed on the conduct unbecoming by a judicial officer at the very least Her Honours Reasons for judgment, an error in law was made by (2)(c an exercise of a power for a purpose other than a purpose for which the power is conferred; I’m appealing this point Pursuant to section 5 Administrative judicial review act 1977 (d) (e).
6.The information in and sworn affidavit and orally produced to the independent children’s lawyer used for the case summary presented to Her Honour Justice Johns was an error in law. I’m appealing this point Pursuant to section 5 Administrative judicial review act 1977 (f) (g) (h) (j).
7.The information in affidavit and orally produced by the Mother or on behalf of the mother to the family report writer Dr [J], Dr [K] and [Ms AA] are inaccurate and self-serving. Im appealing this point Pursuant to section 5 Administrative judicial review act 1977 b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.
…
9.At the final hearing – oral application by the husband that there at least be a further family report and psychiatric assessment of the parties in this case, the husband has been told by her honour on numerous occasions to shut up and sit down. In this case the husband has asked her honour to dismiss herself from the case but her honour refuses to do so. This is clearly a case of apprehended bias and any common lay person sitting in the audience and observing this case would conclude and observe so…
These grounds are based upon unspecified errors. They simply assert purported errors of law without particularity or the impermissible exercise of a ‘power’. Clearly, they are misconceived.
In relation to Ground 9, insofar as it complains of conduct at the ‘final hearing’, it needs to be recalled that the husband did not participate in the final hearing. This complaint could relate to other orders but no orders other than those made on 18 December 2015 are under appeal.
Ground 3
3.I was fraudulently misrepresented by Mr [T] into the notice of discontinuance, and all the communications and conduct leading to and on 7th September 2015 date in which Mr [T] and his associates chaotically conducted themselves in which I played No part in and must be dismissed entirely.
This ground is a complaint about the conduct of what appear to be the husband’s former solicitors and needs to be read in the context of what the husband himself said in the affidavit accompanying his notice of discontinuance filed 13 October 2015 as was set out earlier. Importantly, however, this is not a ground of appeal.
Ground 8
8.Oral and written application by the husband that the Independent Children’s Lawyer be prohibited from solely relying upon Dr [J’s] family report and a Dr [K’s] psychiatric assessment of the parties and the much delayed report of of [Ms S] and all the affidavits by the longterm supervisors and significant others having spend all available time with he Father and children.
This ground contains no complaint as to the primary judge’s determination.
Ground 10
10.The Detailed and qualified Reports of [BB Care Services], Dr [H] and Clinical Psychologist [Ms CC] have been dismissed in Dr [J’s] report due to a spelling error in the husband surname and the reports and results of MMPI-2 Tests x3 and PAI Tests complete and inclusive of the Clinical Interpretive Reports have not been bought to her honour’s attention. However a report from [Ms AA] of [Hospital DD] conducted on my then 5 year old daughter … was produced as evidence without written consent or acknowledgement of the father or the Children’s lawyer and again a blatant abuse of process and human rights.
The complaint here contains no challenge as to the primary judge’s determination and it bears repeating that the husband chose not to take part in the final hearing.
At the top of page 2 of the husband’s amended grounds of appeal, there are four grounds listed as (a), (b), (d) and (e). Although numbered differently to the other 10 grounds, they appear to contain stand-alone challenges. They are:
(a)Her Honour’s blatant disregard to a meaningful relationship with the children and therefore her decision is in breach of the rules of natural justice.
(b)Her Honour disregarded the procedures involved in making this decision for costs against the Husband.
(d)Her Honour fails to adhere to the entirety of the Family Law Act 1975.
(e)Her Honour exercised improper powers in making this decision for costs against the Husband. Her Honour takes the word of Dr [J] without question, doubt and without examining the facts further. Her Honour’s Reasons for Judgement are littered with statements like, “I accept Dr [J’s] evidence.”
Grounds (b) and (e) make reference to decisions in relation to costs. It is to be noted that the orders of 18 December 2015, which are the only orders under appeal, contain no order for costs against the husband. True it is that her Honour gave leave to the ICL to make submissions about costs, and for the wife and the husband to have an opportunity to reply. However, no orders were made in the orders under appeal and these complaints could not possibly succeed.
Grounds (a), (d) and (e), could not succeed in in light of the findings of the primary judge and husband’s failure to appear at the hearing and to take part in the proceedings.
Pages 3 and 4 of the amended grounds appear to set out sections of legislation, including the ADJR Act, and contain comment, none of which could possibly be formulated as a ground of appeal.
The husband’s request/application to further amend his grounds of appeal
As we have said above, at the hearing before us the husband requested that he be given a further opportunity to amend his grounds of appeal. Whether or not we would grant such a request requires a consideration of the primary judge’s orders sought to be appealed and her reasons for judgment.
The primary judge’s reasons for judgment set out the material relied upon, the background to the proceedings, the orders sought and a chronology of the proceedings.
Her Honour identified the issues for determination as being:
56. The issues for determination are as follows:-
· whether the children have been exposed to family violence and the need to protect them from exposure to the same;
· the allocation of parental responsibility;
· with whom the children live and what time if any should be spent with the other parent;
· whether the children spend time with the husband; and if so
· whether the husband’s time with the children should be supervised.
The primary judge considered the primary considerations pursuant to
s 60CC(2) of the Act and subsequently the additional considerations pursuant to s 60CC(3) of the Act.
It is clear from her reasons for judgment that the primary judge gave weight to the wife’s evidence of violence by the husband which she described as being at “the heart of the wife’s application.” Her Honour explained the “wife alleges that the children have been exposed to the husband’s violent and intimidating behaviour.”
The evidence considered included evidence of threats to kill the wife and threats to remove the children ([70]).
Her Honour dealt extensively with the issue of family violence ([64] to [78] inclusive) and noted that the wife’s evidence in relation to the family violence was unchallenged. Her Honour said:
78.…The wife’s evidence as to the husband’s conduct during the marriage and after separation provides a detailed and compelling account of conduct by the husband that is threatening abusive and designed to engender fear in the wife. The wife’s evidence is that the children have also been exposed to that conduct. I accept that evidence.
The primary judge also took into account the evidence of the expert who had prepared two family reports and who observed that one of the children was attending counselling for treatment of symptoms related to post-traumatic stress disorder and that that child disclosed memories of violent behaviour by the husband towards the wife ([80]). The expert assessed the “wife to be a person who is genuinely fearful of the husband” ([82]) and the “husband’s presentation [was] very concerning” ([84]). At [85] the primary judge explained it was the view of the expert that based on her observations, “she could not recommend that the children spend unsupervised time with the husband.”
The primary judge then noted that while the husband had previously denied allegations of violent and abusive behaviour, the wife’s evidence was unchallenged. Her Honour, relying on the wife’s evidence and that of the expert concluded that “there is a history of family violence prior to the parties’ separation and the conduct of the husband since that time … indicates that the husband continues to have difficulty in containing his aggression” ([86]). Thus the primary judge concluded that the husband posed an unacceptable risk of harm to the children and that they should be protected from his behaviour.
In a careful and comprehensive discussion of the various factors required to be considered in determining a child’s best interests under the Act, the primary judge concluded that it was in the children’s best interests for the wife to have sole parental responsibility, for the children to live with her and that they have no contact with the husband.
In relation to the orders for financial matters, the orders simply enforced/facilitated earlier orders made for the sale of the former matrimonial home. Her Honour’s reasons make clear this was done in order to allow the wife to sell the property as trustee, rather than awaiting what seemed to be a likely sale by the mortgagee who had already commenced proceedings in the Supreme Court of Victoria ([150] to [152]).
Discussion
The relevant phrase in s 96AA(1) is that the appeal should have “no reasonable prospect of success”. The High Court in Spencer v The Commonwealth of Australia (2010) 241 CLR 118 considered what constitutes “reasonable prospect” for the purposes of the equivalent of the section in the Federal Court of Australia Act 1976 (Cth), namely s 31A. Having pointed out that s 31A involved a departure from previous tests for summary dismissal of a proceeding, Hayne, Crennan, Kiefel and Bell JJ continued:
58.How then should the expression "no reasonable prospect" be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is "no reasonable prospect". The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like "no reasonable prospect" is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
59.In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.
60.Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
(Footnote omitted)
Adopting the language in Spencer and giving full weight to the expression of “no reasonable prospect of success” as a whole, we conclude that the husband has no reasonable prospect of success and his appeal should be dismissed. In effect the husband was asking for an indulgence to further amend his grounds of appeal, so that form should not prevail over substance where his complaints were couched in the incorrect terminology. But even allowing for the infelicity of expression of his complaints as presently drafted and the possibility that they might be redrafted in a more meaningful form, the gravamen of his complaints could not succeed. He discontinued his application, he avowedly took no part in the proceedings and he avowedly denied the jurisdiction of the court to deal with the applications. The evidence before the primary judge was accordingly unchallenged and however well drafted amended grounds of appeal might be, they could not overcome this fact. In a comprehensive judgment, the primary judge dealt with all of the legislative matters required of her and applied the unchallenged evidence to the facts that she was required to determine and which underpinned her conclusion as to the appropriate orders to be made.
Accordingly, we do not intend to allow a further amendment to the notice of appeal and pursuant to s 96AA(1), the husband’s appeal filed 21 December 2015 as amended will be dismissed.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Ryan and Murphy JJ) delivered on 8 November 2016.
Associate:
Date: 8 November 2016
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