Pachis & Turnbull (No 2) - [2024] FedCFamC1A 16

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Pachis & Turnbull (No 2) [2024] FedCFamC1A 16

Appeal from: Turnbull & Pachis (No 2) [2024] FedCFamC2F 57

Appeal number: NAA 12 of 2024

File number: BRC 15185 of 2022

Judgment of: AUSTIN J

Date of judgment: 21 February 2024

Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Summary dismissal – Where the mother seeks to appeal the decision of the primary judge dismissing her review application of orders of a judicial registrar – Where the judicial registrar adjourned the substantive proceeding for compliance and readiness hearing to the first available date – Where the decision to refuse the mother’s application to expedite the hearing of the substantive application to an earlier date is not a decision from which an appeal competently lies – Where the mother was invited to show cause why the appeal should not be summarily dismissed – Where no recognisable legal, evidentiary, factual or discretionary appealable error is alleged the in the proposed grounds of appeal – Where the application for leave to appeal evinces no reasonable prospect of success – Leave to appeal refused – Appeal summarily dismissed.

Legislation:
Family Law Act 1975 (Cth) Pt VII

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26 and s 46

Cases cited:
Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28

Pachis & Turnbull [2023] FedCFamC1A 110

Rice v Asplund (1979) FLC 90-725; [1978] FamCA 84

Number of paragraphs: 21

Date of hearing: 21 February 2024

Place: Newcastle (via Microsoft Teams)

The Applicant: Litigant in person

The Respondent: Litigant in person
ORDERS

NAA 12 of 2024
BRC 15185 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS PACHIS

Applicant

AND:
MR TURNBULL

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

21 FEBRUARY 2024

THE COURT ORDERS THAT:
1.The Notice of Appeal filed on 15 January 2024 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 Pachis & Turnbull has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

These reasons explain the summary dismissal of an application for leave to appeal from an order made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 10 January 2024 dismissing an application to review a decision made by the judicial registrar (“the registrar”) on 18 December 2023.
Background
Final parenting orders were made between the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pachis & Turnbull (No 2)

Details

AGLC: Pachis & Turnbull (No 2) [2024] FedCFamC1A 16
Case: [2024] FedCFamC1A 16
Decision Date: 21 February 2024

CaseChat Overview and Summary

The matter before the court was an appeal by Ms Pachis against the dismissal of her review application for the decision of the judicial registrar to adjourn the substantive proceeding for a compliance and readiness hearing. The appeal was summarily dismissed by Justice Austin on 21 February 2024. The primary issue for the court was whether the dismissal order was appealable and if the proposed grounds of appeal had merit. The court found that the dismissal order was not appealable as it was a procedural case management order that did not determine any substantive rights. Additionally, the decision to refuse the mother’s application to expedite the hearing of the substantive application to an earlier date was not a decision from which an appeal competently lies. The court also found that the proposed grounds of appeal did not allege any recognisable legal, evidentiary, factual, or discretionary appealable error.

The court found that the appeal did not have a reasonable prospect of success, and the application for leave to appeal was devoid of merit. The court invited the mother to show cause why the appeal should not be summarily dismissed, but she was unable to do so. The court concluded that the appeal should be summarily dismissed, and the Notice of Appeal filed on 15 January 2024 was dismissed.

Orders

Orders of the court

NAA 12 of 2024

BRC 15185 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS PACHIS

Applicant

AND:

MR TURNBULL

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

21 FEBRUARY 2024

THE COURT ORDERS THAT:

1. The Notice of Appeal filed on 15 January 2024 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).

Background

Background to the litigation

These reasons explain the summary dismissal of an application for leave to appeal from an order made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 10 January 2024 dismissing an application to review a decision made by the judicial registrar (“the registrar”) on 18 December 2023.Background Final parenting orders were made between the parties on 28 February 2023 in respect of their children under Pt VII of the Family Law Act 1975 (Cth). Essentially, the orders vested the father with sole parental responsibility for the children and provided that the children live with him. The orders directed that the children not spend any time nor communicate with the mother. The mother’s appeal from those orders was dismissed in July 2023 (Pachis & Turnbull [2023] FedCFamC1A 110). Fresh original proceedings were commenced by the mother on 23 September 2023. She filed an Initiating Application applying for revised interim and final orders giving her, relevantly, “primary custody” of the children. The fresh application was listed for directions before the registrar on 18 December 2023, at which time procedural orders were made listing the proceeding for a compliance and readiness hearing on 30 April 2024. When those orders were made, the registrar made these two notations:C.The matter is being listed for a threshold hearing on the issue of whether there has been a significant change of circumstances sufficient to reopen the Final Orders, in accordance with the principles of Rice v Asplund. D.The matter has been listed at the first available compliance and readiness hearing date in Brisbane.(Emphasis added) On 1 January 2024, the mother filed an application to review the registrar’s decision to adjourn the proceeding until 30 April 2024. The review application was heard and dismissed by the primary judge on 10 January 2024, because the proceeding was given the first available hearing date. By a Notice of Appeal filed on 15 January 2024, subject to the grant of leave to bring it, the mother appeals from the dismissal order made on 10 January 2024. The Notice of Appeal was ostensibly bereft of merit and so was listed to afford the mother the chance to explain why her application for leave to appeal should not be summarily dismissed, which she was unable to accomplish.The proposed appeal There is a preliminary question as to whether the dismissal order is even capable of supporting an appeal, as it is a procedural case management order which does not determine any substantive rights (Commonwealth v Mullane (1961) 106 CLR 166 at 169). Yet, if the order be construed as a refusal to entertain the mother’s application for relief in a sufficiently timely way which does thereby arguably impinge upon her substantive rights, the decision to refuse her application to expedite the hearing of the substantive application to a date before 30 April 2024 is not a decision from which an appeal competently lies (s 26(2)(b)(ii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 12 of 2024 BRC 15185 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS PACHIS Applicant
AND:	MR TURNBULL Respondent

Appeal from:	Turnbull & Pachis (No 2) [2024] FedCFamC2F 57
Appeal number:	NAA 12 of 2024
File number:	BRC 15185 of 2022
Judgment of:	AUSTIN J
Date of judgment:	21 February 2024
Catchwords:	FAMILY LAW – APPEAL – LEAVE TO APPEAL – Summary dismissal – Where the mother seeks to appeal the decision of the primary judge dismissing her review application of orders of a judicial registrar – Where the judicial registrar adjourned the substantive proceeding for compliance and readiness hearing to the first available date – Where the decision to refuse the mother’s application to expedite the hearing of the substantive application to an earlier date is not a decision from which an appeal competently lies – Where the mother was invited to show cause why the appeal should not be summarily dismissed – Where no recognisable legal, evidentiary, factual or discretionary appealable error is alleged the in the proposed grounds of appeal – Where the application for leave to appeal evinces no reasonable prospect of success – Leave to appeal refused – Appeal summarily dismissed.
Legislation:	Family Law Act 1975 (Cth) Pt VII Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26 and s 46
Cases cited:	Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28 Pachis & Turnbull [2023] FedCFamC1A 110 Rice v Asplund (1979) FLC 90-725; [1978] FamCA 84
Number of paragraphs:	21
Date of hearing:	21 February 2024
Place:	Newcastle (via Microsoft Teams)
The Applicant:	Litigant in person
The Respondent:	Litigant in person

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	21 FEBRUARY 2024