Mulroney & Mulroney

[2023] FedCFamC1A 102

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Mulroney & Mulroney [2023] FedCFamC1A 102

Appeal from:

Mulroney & Mulroney [2023] FedCFamC2F 490

Appeal number:

NAA 144 of 2023

File number:

NCC 1111 of 2019

Judgment of:

AUSTIN J

Date of judgment:

28 June 2023

Catchwords:

FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from final parenting orders – Where the appellant is self-represented – Where the grounds of appeal do not expose any complaint of appealable error – Where the appeal enjoys no reasonable prospect of success in its current form – Where the appellant has 14 days within which to file an Amended Notice of Appeal in default of which the appeal is summarily dismissed – Orders made.   

Legislation:

Family Law Act 1975 (Cth) Pt VII

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32, 46, 69

Number of paragraphs:

7

Date of hearing:

28 June 2023

Place:

Newcastle via Microsoft Teams

The Appellant:

Litigant in person

Solicitor for the Respondent:

Conditsis Lawyers

Solicitor for the Independent Children's Lawyer:

NLS Law

ORDERS

NAA 144 of 2023
NCC 1111 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS MULRONEY

Appellant

AND:

MR MULRONEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	AUSTIN J
DATE OF ORDER:	28 June 2023

THE COURT ORDERS THAT:

1.If the appellant fails to file an Amended Notice of Appeal within 14 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 a pseudonym Mulroney & Mulroney has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. This appeal is brought by the appellant from parenting orders made between the parties by a judge of the Federal Circuit and Family Court of Australia (Division 2) under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) on 28 April 2023.

2. Relevantly, the orders make provision for the respondent to have sole parental responsibility for the parties’ two children (Orders 2, 3 and 12), for the children to live with the respondent (Order 4), for the children to spend time with the appellant for several hours each week and on some special occasions at a public venue (Orders 5, 6, 7 and 8), for the children to communicate electronically with the appellant (Order 10), for the children to travel internationally with the respondent (Orders 20 and 21), and the appellant’s restraint from certain conduct (Orders 9, 19 and 22). Those are the specific orders from which the appeal is brought.

3. The Notice of Appeal, filed on 26 May 2023, contains 85 grounds of appeal.

4. However, none of the grounds is directed to any of the appealed orders. Instead, each ground is simply the appellant’s commentary upon a single paragraph within the reasons for judgment. The grounds do not expose any complaint of appealable error.

5. An arbitrary selection of the grounds will exemplify the point:

   3.Paragraph 4, In the best interest of the children to have a meaningful time with the father and paternal grandparents. The mother seeks orders for the children to live in an equal time arrangement with each parents for part of each week with their mother in [Region D] and for the other part of each week with their father [in Region D].

   …

   13.Paragraph 24, There is evidence shows that the father and grandparents still control the children time when spend time with their mother. The mother went to [Country E] for two weeks.

   …

   23.Paragraph 73, It is clear that the father use the children being subject. Child abuse can apply into this section.

   …

   33.Paragraph 95, There were miscommunication during the interview with the family consultant. The mother seek order in term of the father and the children move to [Region AU] area where the children born and grew up. The children never live in [Region D]. All peers and playgroups was in [Region AU] area.

   …

   43.Paragraph 109, There is evidence shows that the mother secured home base on the [Region D] with fifteen minutes drive to schools. The capacity of the mother to catering each child’s individual needs is extremely high.

   …

   53.Paragraph 124, The fact is the location that mother was seeking to be in the order is in [Region AU] area.

   …

   63.Paragraph 142, There is evidence shows that many of the special needs children are in care of single mothers. There is support worker service to provide care 24/7 in [Region D] area. The mother’s partner and friends are supportive reliable.

   …

   73.Paragraph 157, There is evidence shows that the father using the children being subject to fearful the mother and isolate the children. Child abuse law can apply into this section.

   …

   83.Paragraph 174, The video shows that the father use children to be subject when the father is upset.

   (As per the original)

6. The appellant is self-represented, but such disadvantage does not entitle her to prosecute an incompetent appeal. She remains bound by the same legal principles as any other litigant. As the appeal does not comprise any recognisable assertion of appealable error, the proceedings were listed for the appellant to show cause why the appeal should not be summarily dismissed, or at least an order made requiring an Amended Notice of Appeal with competent grounds to be promptly filed. She could not explain the competence of any single ground of appeal when given the opportunity to do so. Nor could she articulate any complaint about the judgment which was capable of conversion into a recognisable ground of appeal.

7. A single judge of the Federal Circuit and Family Court of Australia (Division 1) exercising appellate jurisdiction is empowered to summarily dismiss an appeal if it has no reasonable prospects of success (ss 32(3)(b), 46(2), 46(3) and 69(4)(a) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)). Having afforded the appellant the procedural fairness of hearing her submissions about the competence of the appeal, it enjoys no reasonable prospect of success in its current form and should be summarily dismissed. However, for abundant caution, the appellant will be given 14 days to file an Amended Notice of Appeal containing recognisable grounds of appeal, in default of which the appeal will be summarily dismissed. If an Amended Notice of Appeal is filed within time, but again contains no recognisable ground of appeal, another hearing like this will likely ensue.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       28 June 2023