Pachis & Turnbull (No 2)
[2024] FedCFamC1A 16
•21 February 2024
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 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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 JUDGMENTAUSTIN 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 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”).
Aside from those technical impediments, there are compelling practical reasons why the mother’s application for leave to appeal lacks any semblance of merit.
The mother pleads her proposed grounds of appeal as follows:
1.That the father should not have been given an opportunity to have the case dismissed.
2. That the fathers affidavit should have been accepted for filing.
3.That the Judges are using the perception of “time has past” so your children do not know you.
4. That the father is in the same pedophile syndicate as the judicial officers.
5. Failure to address important core issues that required Judicial input.
6. Further Judicial input / assistance may be required due to the nature of topic.
7.One task-force was interfered with by a corrupt federal legal aid court consultant whom is now in prison and disbarred.
8. The verdict could not be sustained on the evidence before the government.
9.That the Judicial officers refuse to correct any orders and are failing to address core issues in a timely manner.
(As per the original)
As can be seen, none of the proposed grounds constitutes a proper ground of appeal because no recognisable legal, evidentiary, factual or discretionary appealable error is alleged. It is impossible for the father, let alone the judge designated to hear the application for leave to appeal, to understand the premises of the intended appeal according to law.
The facts alleged by the mother to justify the grant to her of leave to appeal only serve to affirm her apparent disillusionment with the result of the former proceedings, her ignorance of the obligation to demonstrate changed circumstances to warrant revision of the final orders made in February 2023, and her misunderstanding of the formal juridical process which governs the disposition of the current proceedings. She alleges this in the Notice of Appeal:
1.TORT- collateral abuse of process - whether the Judge had improper purpose or motives to coerce delaying the proceeding. Exceptional circumstance apply to the proceeding that was not enforced.
2.There is no dispute that the father is a pedophile and has attempted to give away the children to a social worker and has told the previous Judges that “he does not want the children”.
3.There is no dispute that all five children who are in contact with [the father] have been drugged and are used to collect over $500,000 of fraudulent payments annually from the National Disability Insurance Scheme.
…
5.The judges failure to consider and reconsider the mothers sworn affidavits that the children were stolen and placed with a pedophile in-which constitutes a “gross miscarriage of justice”.
…
7.Based on the evidence provided to the Federal Court there are enough reasons and sufficient evidence to remove two children from their criminal father and return them to their mother.
…
9.The national security breaches and concealment of corruption by employees of Brisbane Federal Court require a panel of experienced judicial officers, independent to the Brisbane Federal Court, to correct the orders at the earliest opportunity.
10.That the Judicial officers refuse to correct any orders and are failing to address core issues in a timely manner.
(As per the original)
Such sentiments reflect those she expressed in an intemperate narrative attached to the review application heard by the primary judge, which included these assertions:
The courts have failed to arrest the father…
…
The courts should not allow time for a compliance and readiness hearing with a 19 week delay.
…
The independent children raped the two children and abducted the mother from her premises. The independent children lawyers have been arrested and there was over a million dollars of fraud by [named lawyers].
…
The matter should of been listed as an urgent hearing for two small children to be removed from a cannibal pedophile syndicate, not a compliance and readiness hearing.
…
My two children [names] are suffering by being drugged, being used for child sexual benefits to acquire money from the National Disability Scheme.
…
The independent special council are rapist, murders, pedophiles, cannibals and human child traffickers…
(As per the original)
The mother even sought orders to this effect in her review application:
7.THAT THE COURT ACCEPT THE FACTS THAT [six named judges and registrars] WERE RUNNING A PEDOPHILE HUMAN CHILD TRAFFICKING SCHEME OUT OF THE BRISBANE FEDERAL COURT.
…
12.THAT THE COURTS ACCEPT THAT THERE HAS BEEN TAMPERING WITH GOVERNMENT ARCHIVES, ESPIONAGE AND NATIONAL SECURITY BREACHES OPERATING OUT OF THE BRISBANE FEDERAL COURT.
(As per the original)
The mother’s oral submissions at this hearing were just as florid as the documents she prepared.
Evidently, the mother believes her application is not being given timely consideration by the Court, but it need not be given any consideration at all unless she is able to demonstrate – with probative evidence rather than just pejorative allegations – changed circumstances since the last proceeding was determined between the parties less than 12 months ago (Rice v Asplund (1979) FLC 90-725). If the current orders remain unchanged, at the next court event in April 2024, the mother’s substantive application will be listed for hearing, when she will have the chance to make good on her proposal for fresh parenting orders.
Lastly, even if the appeal is successfully brought, the remedial orders sought by the mother cannot possibly be made and so it is questionable whether there is any point to the proposed appeal. She seeks the discharge of all orders made in the period between December 2022 and January 2024, but this proposed appeal concerns only the procedural order made on 10 January 2024. Any appealable error vitiating that particular order could only possibly be redressed by bringing forward the consideration of the mother’s substantive application from the current listing date on 30 April 2024, but no more than that. Even the grant of that remedy would require the displacement of some other litigants’ case to accommodate an earlier date for the mother.
While the mother also seeks fresh parenting orders, reversing those made in the former proceedings in February 2023, those former orders were upheld in the appeal decided in July 2023 and are immune from attack in this proposed appeal.
The application for leave to appeal evinces no reasonable prospect of success and is therefore summarily dismissed pursuant to s 46(2) of the FCFCA Act.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 21 February 2024
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