Lim & Zong (No 2)

[2024] FedCFamC1A 98

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Lim & Zong (No 2) [2024] FedCFamC1A 98

Appeal from:	Lim & Zong [2024] FedCFamC2F 639
Appeal number:	NAA 110 of 2024
File number:	BRC 1832 of 2023
Judgment of:	AUSTIN J
Date of judgment:	18 June 2024
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL –  Where the appellant seeks that the appeal be heard by a Full Court and not a single judge – Where the appellant could not justify the authorisation of a Full Court appeal – Where the appellant seeks provision of the transcript of the primary judge’s oral reasons (“the reasons”) – Ordered the Court procure the transcript of the reasons on condition the appellant reimburse the Court for the cost of the transcript –  Application otherwise dismissed – Where the respondent’s Response to the application is dismissed.
Legislation:	Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32
Number of paragraphs:	16
Date of hearing:	18 June 2024
Place:	Newcastle (via Microsoft Teams)
The Applicant:	Litigant in person
The Respondent:	Litigant in person

ORDERS

NAA 110 of 2024
BRC 1832 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR LIM

Applicant

AND:

MS ZONG

Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	18 JUNE 2024

THE COURT ORDERS THAT:

1.The Court shall forthwith procure from the transcript provider the transcript of the reasons for judgment delivered orally by the primary judge on 16 April 2024, which transcript will be made available to the parties for use in the appeal, subject to the appellant re-imbursing the Court for the cost of the transcript.

2.The Application in an Appeal filed on 7 June 2024 is otherwise dismissed.

3.The Response to an Application in an Appeal filed on 14 June 2024 is 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 Lim & Zong (No 2) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. By Notice of Appeal filed on 7 May 2024, the father appealed from an order made on 16 April 2024 by a judge of the Federal Circuit and Family Court of Australia (Division 2) dismissing his parenting application.

2. Presently, an interlocutory application requires determination.

3. On 7 June 2024, the father filed an Application in an Appeal seeking these two forms of relief:

   1.I apply to Chief Justice to consider whether it is appropriate for my appeal to be heard by a Full Court rather than a single Judge.

   2.I request to receive the reasons for judgment that highlight the corrections made between the judgment issued on 16 April 2024 and the one dated 23 May 2024.

   (As per the original) (Footnote omitted)

4. In support of the application, the father relied upon his affidavit, also filed on 7 June 2024.

5. The mother opposed the application. She filed a Response to the Application in an Appeal on 14 June 2024, supported by her contemporaneously filed affidavit.

   Full Court or Single Judge?

6. Appeals from judgments delivered by judges of the Federal Circuit and Family Court of Australia (Division 2) are ordinarily heard by single judges of the Federal Circuit and Family Court of Australia (Division 1), unless the Chief Justice considers it is appropriate for the appellate jurisdiction to be exercised by the Full Court (s 32(1)(a) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

7. The availability of power to certify an appeal should be appropriately heard by the Full Court instead of by a single judge does not require the Chief Justice to individually vet every appeal brought from judgments of the Federal Circuit and Family Court of Australia (Division 2). Nor does it require the Chief Justice to personally hear and determine innovative applications like this brought by an appellant seeking conversion of his or her single-judge appeal to a Full Court appeal. Rather, the power is exercised by the Chief Justice after due consideration of any recommendation made by a judge of the Federal Circuit and Family Court of Australia (Division 1). The process is entirely internal to the Court.

8. Considerations which might persuade a judge to recommend, and the Chief Justice to authorise, the exercise of appellate jurisdiction by the Full Court instead of a single judge are the complexity of the appeal, the existence of a novel point of law, or the need to resolve apparent tension between precedential judgments. None of those considerations are present here.

9. In his supporting affidavit, the father says this:

   2.I am applying to the Chief Justice to allow the Full Court of three Judges to hear my appeal. With all due respect, I have observed significant alleged mistakes in the previous two appellate judgments. I am deeply worried that a single Judge may not be sufficient to hear the current appeal. …

   3.The first reason for the application is the serious complaint that [the primary Judge] [deliberately] changed my submission to suit her and previous judgments, including that of Deputy Chief Justice. Despite my multiple appeals, even to the High Court, [the primary Judge] made statements that she clearly knew were not true. With respect, Judges need to accept factual evidence when it conflicts with previous judgments, including those of Deputy Chief Justice.

   4.The second reason is that wrong findings and judgments have been made in my two previous appeals. …

   …

   [The primary Judge] [deliberately] changed my submission. In her judgment, [the primary Judge] wrote statements that she clearly knew were not true.

   (Emphasis altered)

10. The “first reason” and the last allegation pertain to the primary judge reciting in the reasons for judgment the father’s assertion he has not committed family violence for two years, whereas he alleges he in fact submitted to the primary judge he had not committed family violence for the last “three and a half years”. His affidavit included multiple transcript references to bolster the submission he made to the primary judge. The audacious allegation of the primary judge’s deceit by deliberately misconstruing the father’s submissions will be either proven or debunked by comparing the reasons for judgment with his evidence and submissions.

11. The father’s dissatisfaction with other appellate judgments delivered in two past appeals brought by him is not such as to justify the authorisation of a Full Court appeal in this instance. It is feasible the father could be just as dissatisfied with the judgment of the Full Court as he has been with the past judgments of single judges.

12. The Chief Justice will not be invited to authorise the exercise of appellate jurisdiction in this appeal by the Full Court. The appeal will be heard by a single judge on 15 July 2024, in keeping with the current listing.

    Reasons for judgment

13. In support of his second application, the father deposed this:

    I also request that [the primary judge’s] “Ex Tempore Reasons for Judgment” includes markings indicating what has been “corrected”

    41.      On 16 April 2024, [the primary judge] read out her Judgment.

    …

    44.On 23 May 2024, [the primary judge] “EX TEMPORE REASONS FOR JUDGMENT” is available.

    45.The document includes: This judgment was delivered orally and has been corrected for written comprehension. There is no information about what has been “corrected”.

    (As per the original) (Emphasis in original)

14. Any corrections to the settled reasons will be discernible from a comparison between the published reasons and the transcript of the primary judge’s oral ex tempore reasons.

15. The father contended the transcript of the primary judge’s oral ex tempore reasons was unavailable to him. To cure the problem, the parties agreed an order could be made for the Court to procure the transcript of those reasons, but only on condition the father re-imburses the Court for the cost of the transcript.

    Disposition

16. The Application in an Appeal is otherwise dismissed. So is the Response to it.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       18 June 2024