Naisby & Naisby (No. 2)

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FAMILY COURT OF AUSTRALIA

Naisby & Naisby (No. 2) [2021] FamCAFC 157

Appeal from: N/A – Review of Registrar’s decision made 19 July 2021
Appeal number(s): NOA 45 of 2020
File number(s): BRC 4847 of 2016
Judgment of: AINSLIE-WALLACE J
Date of judgment: 24 August 2021
Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – REVIEW OF DECISION OF THE APPEAL REGISTRAR – Where the applicant seeks to review the decision of the Appeal Registrar to refuse to accept for filing an Application in an Appeal to reinstate an appeal – Where the appeal had been dismissed by the Full Court with the consent of the parties – Where the appellate jurisdiction of the Full Court has been exhausted – Assertions of uninformed consent – Complaints of judicial conduct – Where the applicant misunderstands the nature of the appeal process – Application for review dismissed.
Legislation:

 Family Law Act 1975 (Cth) ss 94AAA(10)(g), 94(2), 94(2D)(g), 123

Family Law Rules 2004 (Cth) Pt 18.2, rr 18.07, 22.40, 22.41

Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Bele v Vaughan (No 2) (2012) 268 FLR 411; [2012] FamCAFC 125

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9

Wellington & Child Support Registrar [2012] FamCAFC 34

Division: Appeal Division
Number of paragraphs: 55
Date of hearing: 12 August 2021
Place: Sydney
The Applicant: Litigant in person
The Respondent: Litigant in person
Independent Children's Lawyer: Legal Aid Queensland (did not participate)

ORDERS

NOA 45 of 2020
BRC 4847 of 2016

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MR NAISBY

Applicant
AND:

MS NAISBY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AINSLIE-WALLACE J

DATE OF ORDER:

24 AUGUST 2021

THE COURT ORDERS THAT:

1.Application to review a decision of a registrar filed on 23 July 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Naisby & Naisby has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

AINSLIE-WALLACE J:

INTRODUCTION

  1. On 19 July 2021, Mr Naisby (“the father”) attempted to file an Application in an Appeal seeking to reinstate his appeal from parenting orders made by a judge of the Federal Circuit Court on 5 June 2020 (NOA 45 of 2020).  The Appeal Registrar declined to file the application because the appeal sought to be reinstated had been dismissed by the Full Court on 2 March 2021 with the consent of the father, Ms Naisby (“the mother”) and the Independent Children's Lawyer.  On…

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Details
Case
[2021] FamCAFC 157
Decision Date

CaseChat Overview and Summary

The appeal was heard before the Full Court on 2 March 2021. The father, the appellant, sought to appeal from the final parenting and property orders made by the primary judge on 5 June 2020 and 1 September 2020 respectively. The appeal was dismissed by the Full Court with the consent of the parties on 19 March 2021. The appellant has sought to review the decision of the Appeal Registrar to refuse to accept for filing an Application in an Appeal to reinstate the appeal. The appeal process was final and the appellate jurisdiction of the Full Court had been exhausted. The applicant had misunderstood the nature of the appeal process.

The applicant contended that his consent to the dismissal of the appeal had been uninformed, that the Appeal Registrar had failed to properly consider the Application for Review, and that the Appeal Registrar had displayed bias and improper conduct. The applicant had not identified any error in the Appeal Registrar’s decision, and the Appeal Registrar had correctly determined that there was no basis for the application to be accepted for filing. The appeal process had been final and the appellate jurisdiction of the Full Court had been exhausted. The applicant had misunderstood the nature of the appeal process, and the Appeal Registrar’s decision could not be reviewed.

The court dismissed the application for review, finding that there was no basis for the Appeal Registrar’s decision to be reviewed. The court noted that the Appeal Registrar had properly considered the application and that the appellant had not identified any error in the decision. The court also found that the appeal process had been final and that the appellate jurisdiction of the Full Court had been exhausted. The applicant had misunderstood the nature of the appeal process, and the Appeal Registrar’s decision could not be reviewed.

The court dismissed the application for review and noted that the form of the order was subject to the entry in the Court’s records. The court also noted that this copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors.

Orders

Orders of the court

NOA 45 of 2020

BRC 4847 of 2016

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR NAISBY

Applicant

AND:

MS NAISBY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AINSLIE-WALLACE J

DATE OF ORDER:

24 AUGUST 2021

THE COURT ORDERS THAT:

1. Application to review a decision of a registrar filed on 23 July 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

The application for review was listed for hearing on 12 August 2021, and for the reasons which follow, it will be dismissed.BACKGROUND The father and mother have been engaged in parenting and property litigation in the Federal Circuit Court since 2016. Commencing in February 2019 and concluding in October 2019 and over eight days of hearing, the parties’ parenting and property settlement proceedings were heard by the primary judge. The primary judge made final parenting orders on 5 June 2020 and determined the property settlement proceedings by final orders made on 1 September 2020. The father lodged appeals in respect of both the property and parenting orders. Both appeals were listed for hearing before the Full Court on 2 March 2021. The final parenting orders provided that the two youngest children of the parties’ relationship return to live with the mother, they having previously lived with the father as a result of interim orders made in April 2018. An older child of the parties had been living with the father and he was unaffected by the primary judge’s parenting orders. The parenting orders further provide for time to be spent between the children and the father. Since the father placed considerable significance on what happened during the appeal hearing to support his application, it is necessary to traverse that hearing in some detail. At the commencement of the appeal hearing, the presiding judge indicated to the parties that the Court would consider the property appeal first, followed by an adjournment, and then move to consider the parenting appeal. No one objected to that course. At the commencement of the father’s argument on the property appeal, the presiding judge observed that there was substance to the challenge advanced by him that the primary judge’s order purporting to notify the Trustee of the relevant superannuation fund was inoperative. The presiding judge raised this with counsel for the mother as follows:RYAN J: You heard me indicate at the opening my thoughts in relation to order 4. I can’t see how the order as to the operative time is an order as to notice. There is no application to adduce further evidence in the appeal to prove service on the trustee. [COUNSEL FOR THE MOTHER]: There is not, your Honour. RYAN J: It is going to cause you a lot of difficulty. And you will need to consider – if that ground of appeal is successful, then what? Is the adjustment at some 314-odd thousand so substantial that it brings the whole of the property orders down and require remittal, or is it an error that, if we’re satisfied it is an error, that can be dealt with by us by way of re-exercise, including giving appropriate notice to the trustee?...[1][1] Transcript 2 March 2021, p.29 lines 28–38 Although counsel for the mother ultimately conceded the identified error, she sought, in effect that the Full Court re-exercise the primary judge’s discretion to rectify the error by giving notice to the Trustee. At the conclusion of the submissions by counsel for the mother on the balance of the father’s appeal grounds, the presiding judge said:RYAN J: All right. Thank you. Thank you for that. [counsel for the mother], something I raised earlier is what would be the consequences of us finding error beyond the scope of the challenge to order 4 in the superannuation splitting order? It seems to me, for us to be in a position to re-exercise, we need to have findings in the judgment to work from and we don’t have them, and we have thousands of pages of material. So the prospect of a re-exercise against the background of few findings is a prospect that would seem unavailable in the event that one or other of the grounds succeeds.[2][2] Transcript 2 March 2021, p.47 lines 16–22

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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