Murphy & Carroll

[2022] FedCFamC1A 71

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Murphy & Carroll [2022] FedCFamC1A 71

Appeal from:

Order 4 dated 17 March 2022

Appeal number(s):

NAA 65 of 2022

File number(s):

PAC 3553 of 2020

Judgment of:

AUSTIN J

Date of judgment:

19 May 2022

Catchwords:

FAMILY LAW – APPEAL – Practice and procedure – Where the grounds of appeal as presently pleaded are incompetent – Where the appeal was listed to afford the father the opportunity to be heard about why the incompetent grounds should not be struck out – Where when given the chance to explain the father could not logically do so – Where the grounds are struck out – Where in default of an Amended Notice of Appeal being filed within 21 days, the appeal is summarily dismissed.

Legislation:

Family Law Act 1975 (Cth) Pt VII, s 68L

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 69

Number of paragraphs:

9

Date of hearing:

19 May 2022

Place:

Newcastle (via video link)

The Applicant:

Litigant in person

The First Respondent:

Did not participate

Solicitor for the Second Respondent:

Legal Aid ACT

ORDERS

NAA 65 of 2022
PAC 3553 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR MURPHY

Applicant

AND:

MS CAROLL

First Respondent

MR AKERMAN

Second Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	19 MAY 2022

THE COURT ORDERS THAT:

1.The grounds contained within the Notice of Appeal filed on 13 April 2022 are struck out and, in default of an Amended Notice of Appeal being filed within 21 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 the pseudonym Murphy & Carroll has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. The parties to this appeal are contesting parenting proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) before a judge of the Federal Circuit and Family Court of Australia (Division 2).

2. On 17 March 2022, the primary judge made a series of procedural orders to ensure the orderly progress of the proceedings towards trial. One particular order appointed an Independent Children’s Lawyer (“the ICL”) to represent the interests of the two children pursuant to s 68L of the Act (Order 4). It is from that, and only that, order which the father appeals.

3. The grounds of appeal pleaded in the Notice of Appeal filed on 13 April 2022, however, appear to have little or no bearing upon the integrity of Order 4. The grounds are stated as follows:

   1.my case is that the judge failed to take in to consideration of the fact of the matter via the affidavit that was presented to the court in view of RESPONDENT 2 allegation.

   2.the judge sided with the respondent 2 lawyer by answering almost evevry [sic] sentence that I made

   4.the judge completely shut me down and he was only listening to RESPONDENT 2 LAWYER

   5.non [sic] of my proposal was granted neither he heard any thing from my side.

   6.OVERALL the judge got lost between the CHILDREN’S FATHER which is the APPLICANT (MR MURPHY) and the RESPONDENT 2 which is Mr Akerman. That led to a wrong judgment on me

   7.FAMILY LAW ACT 1975 ARTICLE 12.1 The ages/maturity of my children doesn’t meet the guidelines of ICL. And there is no violence between the BIOLOGICAL PARENTS.

   (As per the original)

4. Ground 7 at least refers to some basis for why Order 4 should not have been made, but falls well short of any obvious impeachment of the order on any recognisable appeal ground.

5. Since the grounds lack apparent correlation with the single challenged order, the appeal was listed to afford the father the opportunity to be heard about why any grounds of appeal which are obviously incompetent should not be struck out.

6. The power to appoint an ICL stems from s 68L of the Act, which is relevantly in these terms:

   Court order for independent representation of child's interests

   (1)This section applies to proceedings under this Act in which a child's best interests are, or a child's welfare is, the paramount, or a relevant, consideration.

   (2)If it appears to the court that the child's interests in the proceedings ought to be independently represented by a lawyer, the court:

   (a)may order that the child's interests in the proceedings are to be independently represented by a lawyer; and

   (b)may make such other orders as it considers necessary to secure that independent representation of the child's interests.

   …

   (4)A court may make an order for the independent representation of the child's interests in the proceedings by a lawyer:

   (a)       on its own initiative; or

   (b)       on the application of:

   (i)        the child; or

   (ii)an organisation concerned with the welfare of children; or

   (iii)      any other person.

   (5)Without limiting paragraph (2)(b), the court may make an order under that paragraph for the purpose of allowing the lawyer who is to represent the child's interests to find out what the child's views are on the matters to which the proceedings relate.

   Note: A person cannot require a child to express his or her views in relation to any matter, see section 60CE.

   (6)Subsection (5) does not apply if complying with that subsection would be inappropriate because of:

   (a)       the child's age or maturity; or

   (b)       some other special circumstance.

7. When given the chance to explain how it was contended Order 4 was wrongly made in the face of such broad power, the father could not logically do so. He agreed Grounds 1–6 had nothing to do with Order 4 and agreed Ground 7 could be made more explicit.

8. The present grounds of appeal are incompetent and, pursuant to s 69(4)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”), are struck out.

9. To be clear, the appeal is not yet summarily dismissed. The father will be given a short period within which to file an Amended Notice of Appeal pleading proper grounds. In default, the appeal will then be summarily dismissed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       25 May 2022