Oakley & Millar

[2022] FedCFamC1A 7

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Oakley & Millar [2022] FedCFamC1A 7

Appeal from:

Millar & Oakley [2021] FedCFamC1F 12

Appeal number(s):

NAA 28 of 2021

File number(s):

MLC 2195 of 2016

Judgment of:

AUSTIN J

Date of judgment:

1 February 2022

Catchwords:

FAMILY LAW – APPEAL – Practice and Procedure – Where the grounds of appeal as presently pleaded are not in satisfactory form – Where the 25 grounds are a retinue of complaints about the perceived unfairness of the trial process and the result – Where the appeal has no reasonable prospect of success in its current form – 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 – Application in an Appeal – Where the appellant agreed it should not be heard and determined until after the grounds of appeal are settled.

Legislation:

Family Law Act 1975 (Cth) Pt VII

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 26(1)

Cases cited:

Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

Yule v Junek (1978) 139 CLR 1;[1978] HCA 4

Number of paragraphs:

8

Date of hearing:

1 February 2022

Place:

Newcastle (via video link)

The Appellant:

Litigant in person

Solicitor for the Respondent:

Ebejer & Associates

The Independent Children's Lawyer:

Did not participate

ORDERS

NAA 28 of 2021
MLC 2195 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR OAKLEY

Appellant

AND:

MS MILLAR

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	1 FEBRUARY 2022

THE COURT ORDERS THAT:

1.The grounds of appeal contained within the Notice of Appeal filed on 30 September 2021 are struck out and, in default of an Amended Notice of Appeal being filed within 21 days:

(a)the appeal is summarily dismissed; and

(b)the Application in an Appeal filed on 7 December 2021 is dismissed.

2.The Application in an Appeal filed on 7 December 2021 is otherwise listed for hearing before Austin J at 9.30 am on Friday 25 February 2022.

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 Oakley & Millar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. On 2 September 2021, in proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”), a judge of the Federal Circuit and Family Court of Australia (Division 1) made final parenting orders between the parties in respect of their two children, aged nine and seven years at that time. The orders essentially provided for the mother to have sole parental responsibility for the children and for them to live with her, but for the children to neither spend time nor communicate with the father.

2. By a Notice of Appeal filed on 30 September 2021, the father purports to appeal from:

   (a)the parenting orders allocating parental responsibility, settling the children’s residence, and declaring the absence of interaction between him and the children (Orders 2, 3 and 4);

   (b)an injunction which precludes contact between him and the children, with attendant procedural orders (Orders 8, 9, 10 and 11);

   (c)a procedural order discharging the appointment of the ICL on the finalisation of this appeal (Order 12);

   (d)an order dismissing all extant applications not otherwise covered by the orders (Order 13); and

   (e)“all the findings in the judgement (sic)”.

3. Of course, there can be no appeal from mere findings (Yule v Junek (1978) 139 CLR 1). An appeal only lies from the “judgment” (ss 7 and 26(1) Federal Circuit and Family Court of Australia Act 2021 (Cth)), which comprises the orders of the primary judge – not the reasons given for the orders (Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64) – though the reasons serve to illuminate appealable error which may vitiate the orders.

4. The Notice of Appeal pleads 25 separate grounds of appeal, which run to 10 pages in length. There is no utility in repeating them here.

5. Allowing due respect for the father’s efforts as a self-represented litigant for whom English is a second language, the grounds of appeal are not in a satisfactory form. Although the grounds are sequentially numbered, their numerical segregation does not signify discrete challenges to the appealed orders. The grounds are loquacious, jumbled, argumentative and, in many instances, ungrammatical. Undoubtedly the husband has grievances he wishes to agitate in the appeal but, like every other litigant, he must do so in accordance with accepted rules. His lack of legal knowledge is a misfortune, not a privilege (Gallo v Dawson (1990) 93 ALR 479 at 481). Perhaps a valid ground of appeal is lurking somewhere in the Notice of Appeal, but the discursive narrative does not enable it to be easily identified. If the appeal is permitted to progress in its current form, the mother and her lawyers certainly have little chance of identifying and meeting any permissible challenges.

6. The appeal was listed so the father could be alerted to those difficulties and to afford him an opportunity to overcome them. To his credit, he accepts the grounds of appeal are, in large measure, a retinue of complaints about the perceived unfairness of the trial process and the outcome, which must be re-pleaded in a form corresponding with recognisable and competent grounds of appeal from a discretionary judgment.

7. Given the father’s sensible concession, an order is made requiring him to file an Amended Notice of Appeal within 21 days, in default of which the appeal is summarily dismissed because it has no reasonable prospect of success in its current form.

8. The father’s Application in an Appeal filed on 7 December 2021 was also listed today, but the father agreed it should not be heard and determined until after his proper grounds of appeal are settled. It will be listed for hearing shortly after the Amended Notice of Appeal is due to be filed, but is dismissed if the appeal is summarily dismissed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin delivered on 1 February 2022.

Associate:

Dated:       1 February 2022