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 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Moon & Moon

Details

AGLC: Moon & Moon [2021] FedCFamC1A 7
Case: [2021] FedCFamC1A 7
Decision Date

CaseChat Overview and Summary

The case of Moon & Moon involved an application by Mr Moon for review of a decision made by an appeal registrar refusing to accept for filing his Application in an Appeal. The Application sought an extension of time within which to file an appeal from an order made by a judge on 21 July 2021, adjourning a review application filed by Mr Moon on 14 July 2021. The court was required to determine whether the appeal registrar's decision was correct, and if not, whether Mr Moon would benefit from a successful appeal.

The court found that the appeal registrar's decision was correct because the order made by the judge on 21 July 2021 was not an appealable decree under section 94AAA of the Family Law Act 1975 (Cth), as it was merely a procedural order and not decisive of the parties' rights. Additionally, even if the adjournment order had been appealable, a successful appeal would not have provided Mr Moon with any tangible benefit, as the only remedy would have been remitter of the underlying review application for re-hearing, which was already listed for hearing in the near future.

The court dismissed Mr Moon's Application for Review, and 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. The court's decision was based on the legal principles that the appeal registrar's decision was correct and that a successful appeal would not have provided Mr Moon with any tangible benefit. The court's dismissal of the review application means that the underlying interim parenting dispute between the parties will proceed as scheduled, without any further delays caused by the unsuccessful appeal.

Orders