Northam & Northam

[2025] FedCFamC1A 54

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Northam & Northam [2025] FedCFamC1A 54

Appeal from:

Order dated 28 February 2025

Appeal number:

NAA 99 of 2025

File number:

9855 of 2022

Judgment of:

AUSTIN J

Date of judgment:

28 March 2025

Catchwords:

FAMILY LAW – APPEAL – Practice and procedure – Show cause – Where the appellant was invited to show cause why his appeal should not be summarily dismissed – Where final parenting orders were made by the parties’ consent – Where no ground of appeal argues the orders impeached the anterior agreement reached between the parties – Where no ground of appeal alleges the magistrate was bereft of jurisdiction or power to make the consent orders – Where no ground of appeal alleges the appellant’s consent of the orders was inveigled or induced by fraud, mistake or some other fundamental misunderstanding – Appeal summarily dismissed.  

Legislation:

Family Law Act 1975 (Cth) Pt VII

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46

Cases cited:

Allan & Ors & Allan & Ors (2014) FLC 93-606; [2014] FamCAFC 162

Gilbert v Estate of Gilbert (1990) FLC 92-125; [1989] FamCA 95

Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27

Number of paragraphs:

11

Date of hearing:

28 March 2025

Place:

Newcastle (via Microsoft Teams)

The Appellant:

Litigant in person

Solicitor Advocate for the Respondent:

Ms McNamara

Solicitor for the Respondent:

Redgum Justice

ORDERS

NAA 99 of 2025
9855 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR NORTHAM

Appellant

AND:

MS NORTHAM

Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	28 MARCH 2025

THE COURT ORDERS THAT:

1.The Notice of Appeal filed on 13 March 2025 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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Northam & Northam has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. Orders were made by the Magistrates Court of Western Australia on 28 February 2025, though the orders were amended on 18 March 2025 under the slip rule to correct errors and omissions.

2. The subject orders were made under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of the parties’ child, principally providing for the child to live with the parties in a “week about arrangement” (Order 4) and precluding his removal from Australia for many years hence (Orders 8–11). The orders finally concluded the cause of action (Orders 6 and 14).

3. Importantly, the orders were made by the magistrate with the parties’ consent, which the father affirmed when directly asked in these proceedings.

4. The appeal is puzzling.

5. First, the appeal purports to lie from only Order 6, which effectively dismissed any outstanding application not covered by the other orders and brought the proceedings to an end. Yet, the pleaded grounds of appeal are seemingly directed to the totality of the orders, not just Order 6.

6. Secondly, the grounds of appeal impermissibly ignore the orders were made consensually, so there was no contested hearing, the parties’ evidence was untested, and the magistrate must have necessarily accepted the outcome upon which they agreed promoted the child’s best interests. The grounds of appeal allege:

   (a)the magistrate “failed to properly weigh the [father’s] substantial evidence” against the mother’s “circumstantial and unsubstantiated claims” (Ground 1);

   (b)the magistrate exhibited “potential bias” (Ground 2);

   (c)the mother made “multiple misrepresentations”, which undermined her credibility (Ground 3);

   (d)the magistrate failed to consider the child’s best interests (Ground 4);

   (e)the mother “demonstrated a disregard for legal processes” (Ground 5);

   (f)the magistrate failed to properly weigh the cultural backgrounds of each parent (Ground 6); and

   (g)the mother’s lawyer accused the father of breaching parenting orders without any substantial evidence (Ground 7).

7. The appeal is evidently misguided on several levels. Most fundamentally though, judgments reflected in orders made with the parties’ consent may only be appealed on grounds which either impeach the anterior agreement reached between the parties or vitiate the orders for the want of jurisdiction or power to make them (Harvey v Phillips (1956) 95 CLR 235 at 235–244; Allan & Ors & Allan & Ors (2014) FLC 93-606 at [59]–[65]; Gilbert v Estate of Gilbert (1990) FLC 92-125 at 77,839).

8. No ground of appeal is directed to either of those ends, meaning the appeal is incompetent.

9. No ground alleges the magistrate was bereft of jurisdiction or power to make the consent orders.

10. No ground alleges the father’s consent to the orders was inveigled or induced by fraud, mistake or some other fundamental misunderstanding. Although Ground 3 alleges “misrepresentations” were made by the mother, the father confirmed in these proceedings that the alleged factual misrepresentations concerned historical events, of which he was aware and must have elected to disregard when he reached agreement with the mother over the orders which should govern the child’s care. They were not misrepresentations vitiating the parties’ agreement.

11. The appeal was listed to afford the father the chance to explain why it should not be summarily dismissed for the lack of any reasonable prospect of success (s 46(2) and s 46(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)). He failed to discharge that burden and so the appeal is summarily dismissed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       28 March 2025