Moon & Moon
[2021] FedCFamC1A 7
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Moon & Moon [2021] FedCFamC1A 7
Appeal from: Review of Appeal Registrar’s decision made 25 August 2021 Appeal number(s): NAA 2 of 2021 File number(s): BRC 10802 of 2020 Judgment of: AUSTIN J Date of judgment: 10 September 2021 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – REVIEW OF DECISION BY THE APPEAL REGISTRAR – Where the applicant seeks review of the decision by the appeal registrar to refuse to accept for filing an Application in an Appeal seeking an extension of time within which to file an appeal – Where the application is futile – Where the order which is the subject of the proposed appeal is a judgment from which an appeal is prohibited by s 26(2)(b)(ii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where, even if the appeal was permitted and was successful, the only remedy would be remitter of a review application for re-hearing when it is already listed for hearing in the near future – Application dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 94AAA
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) sch 5 pt 4 div 1 cl 27
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26(2)(b)(ii)
Cases cited: Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91
Yule v Junek (1978) 139 CLR 1; [1987] HCA 4
Division: Division 1 Appellate Jurisdiction Number of paragraphs: 17 Date of hearing: 10 September 2021 Place: Heard in Brisbane (via video link), delivered in Newcastle The Applicant: Litigant in person Counsel for the Respondent: Ms Pendergast Solicitor for the Respondent: WP Lawyers Solicitor for the Independent Children's Lawyer: Smithson Lawyers ORDERS
NAA 2 of 2021
BRC 10802 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR MOON
Applicant
AND: MS MOON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
10 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The Application for Review filed on 2 September 2021 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Moon & Moon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
AUSTIN J:
On 2 September 2021, the applicant filed an Application for Review, seeking review of the decision made by an appeal registrar on 25 August 2021. That is the only Application listed before me today.
The subject decision of the appeal registrar is that contained within a letter dated 25 August 2021, sent by her to the applicant, explaining why an Application in an Appeal he sent to the Court for filing the day before had been rejected. The applicant contests the decision.
Context
The applicant instituted proceedings in respect of his children under Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”) in August 2020, which proceedings are still pending before the Federal Circuit and Family Court of Australia (Division 2).
On 7 July 2021, a senior registrar made interim parenting orders between the applicant and the respondent, but those orders only partially resolved the parties’ interim dispute and so their residual claims for interim relief were adjourned for further determination before the senior registrar on 13 October 2021.
On 14 July 2021, the applicant filed an Application for Review seeking judicial review of two particular orders made by the senior registrar on 7 July 2021, which orders provided for the children to live with the respondent (Order 2) and for them to spend defined time with the applicant (Order 3).
The review application was listed before a judge of the Federal Circuit Court of Australia (as the Court was then known) on 21 July 2021, on which occasion the list judge made an order adjourning the review application for hearing on 29 September 2021.
Dissatisfied with that order, on 24 August 2021, the applicant sent to the Court for filing an Application in an Appeal seeking an extension of time within which to file an appeal from the adjournment order made on 21 July 2021. The Application was accompanied by a draft Notice of Appeal and an affidavit pleading for favourable consideration.
The appeal registrar refused to accept the Application in an Appeal for filing and returned the documents to the applicant under cover of the letter dated 25 August 2021. The appeal registrar advised the applicant in the letter that the Application was rejected because:
You seek to [sic] an extension of time to file a notice of appeal from the order of Judge [name] made on 21 July 2021.
The order provides that an application for review be adjourned for interim hearing on another date.
As the decision does not determine the proceedings or an identifiable part of the proceedings, it does not amount to an ‘order or decree’ capable of being appealed, if the Notice of Appeal had been lodged on time.
Dissatisfied with that decision, on 2 September 2021, the applicant filed an Application for Review seeking judicial review of the appeal registrar’s decision not to accept the Application in an Appeal for filing.
Disposition
There are two reasons why the review application is futile and must be dismissed.
First and foremost, the reason given by the appeal registrar for rejection of the applicant’s Application in an Appeal was correct. The ultimate object of the applicant’s ire is the order made by the judge on 21 July 2021 adjourning his review application for hearing about two months ahead, but that order was not an appealable decree under s 94AAA of the Family Law Act because it was merely a procedural order which was not in any way decisive of the parties’ rights (Yule v Junek (1978) 139 CLR 1; Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; Commonwealth v Mullane (1961) 106 CLR 166).
Were there any doubts about that before, there can be none now. The situation has become even more certain since the commencement of operation of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”) on 1 September 2021, one day before the applicant filed his Application for Review. I am now considering afresh the question of whether the applicant should be permitted to file his Application in an Appeal and, pursuant to Schedule 5, Part 4, Division 1, Clause 27 of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth), even though the applicant is seeking through the proposed appeal to challenge an order made by a judge on 21 July 2021 when exercising jurisdiction under the Family Law Act, I am presently obliged to treat the applicant’s proposed Application in an Appeal as an application made under the provisions of the FCFCA Act rather than the remaining provisions of the Family Law Act.
That being so, s 26(2)(b)(ii) of the FCFCA Act provides that the decision made by the judge on 21 July 2021 to adjourn the hearing of the review application is a judgment from which an appeal must not be brought. If an appeal from the order is incompetent, so must be the anterior application to bring the appeal out of time.
Secondly, even if the adjournment order made on 21 July 2021 was appealable, even if the Application in an Appeal was accepted for filing, even if the applicant was then granted leave to appeal out of time, and even if the appeal was then successful, the applicant would still not derive any tangible benefit. That is because the intended appeal only challenges the validity of the adjournment order made by the judge on 21 July 2021. If the judge fell into error by adjourning the hearing of the review application for two months instead of hearing it on the spot or more promptly, the only remedy for the successful appeal would be annulment of the adjournment order and the remitter of the underlying review application filed by the applicant on 14 July 2021 for hearing by the same or another judge.
There could be no exercise of discretion in the underlying interim parenting dispute by the judge who subsequently hears the appeal because he or she would not be seized of power to do so, there having yet been no exercise of such discretion at first-instance. The hearing of the applicant’s review application is already due to take place on 29 September 2021 – the date to which the application was first adjourned – sooner than the review application could be heard after any hypothetically successful appeal.
The Application for Review filed on 2 September 2021 is therefore dismissed.
The various outstanding procedural and interim disputes between the parties remain listed before the judge of the Federal Circuit and Family Court of Australia (Division 2) on 29 September 2021.
I certify that the preceding eighteen (17) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 10 September 2021
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