Penriss & Marcot
[2021] FedCFamC1A 22
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Penriss & Marcot [2021] FedCFamC1A 22
Appeal from: Marcot & Penriss [2019] FCCA 23 Appeal number(s): NOA 123 of 2018 File number(s): BRC 14443 of 2018 Judgment of: AUSTIN J Date of judgment: 28 September 2021 Catchwords: FAMILY LAW – APPEAL – Practice and procedure – Summary dismissal – Where the appealed interim parenting orders were rendered otiose by subsequent final parenting orders – Where the dormant appeal was listed to give the appellant an opportunity to explain why the appeal should not be dismissed for futility – Where there was no appearance by the appellant – Appeal summarily dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII
Federal Circuit Court Rules 2001 (Cth) r 16.05(2)(a)
Number of paragraphs: 10 Date of hearing: 28 September 2021 Place: Newcastle The Appellant: Litigant in person (no appearance) Counsel for the Respondent: Mr Berghofer Solicitor for the Respondent: Cooper Roper Legal Solicitor for the Independent Children's Lawyer: Carter Farquar Mediation and Family Law ORDERS
NOA 123 of 2018
BRC 14443 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTIONBETWEEN: MR PENRISS
Appellant
AND: MS MARCOT
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
28 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The appeal 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 Penriss & Marcot has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
On 24 December 2018, the father appealed from interim parenting orders made several days beforehand on 20 December 2018 by a judge of the Federal Circuit Court of Australia (as the Court was then known).
The appealed orders provided for the parties’ child, then only eight months old, to live with the mother. The child had been withheld by the father and so, in the event of his refusal to return the child to the mother as ordered, a recovery order was to issue. Upon return of the child to the mother, the orders provided for the child to spend supervised time with the father for two hours each fortnight at a contact centre.
The father was self-represented at the hearing before the primary judge and evidently prepared the Notice of Appeal himself. His disadvantage at being without the benefit of legal advice or representation in the appeal is obvious, since the solitary ground of appeal posited by the father is expressed in these terms:
1.My daughter [name] is now back in an unsafe environment beause of a massive error from [the primary judge]. I have a large number of suppoena’s which I need to initiate. One of which is from two separate Child Harm reports from [Queensland] Police which clearly state [the mother] as an unfit Mother who abuses Drugs and has psychotic episodes. Multiple Mental Health admissions. My daughter needs to be back with her loving father in a drug/alcohol free environment. Legal Aid denied a mediation for [the mother] after obtaining the Child harm Reports. My past history is disposition.
(As per the original)
Though the ground does not disclose any recognisable appealable error by the primary judge, that is now of little moment as the appeal was rendered futile by subsequent events.
At some indistinct point in time after the appealed orders were made in December 2018, the father was incarcerated. The duration of his sentence of imprisonment or remand without bail remains unknown. Suffice to say, the appeal did not progress on account of either the father’s loss of interest in it or his perceived inability to prosecute the appeal by reason of his imprisonment.
In March 2019, the Appeals Registrar held a procedural hearing, but adjourned the procedural hearing to a date to be fixed and ordered the father to file an Application in an Appeal seeking the orders he had foreshadowed about wanting to delay the hearing of the appeal until he had concluded other proceedings before a State court. The father did not ever file the Application and so the next procedural hearing was never fixed. The appeal has since been dormant.
More recently, on 6 August 2021, another judge made orders to finally dispose of the proceedings between the parties in respect of the child under Pt VII of the Family Law Act 1975 (Cth). The father did not appear and was not legally represented at the hearing which led to those orders being made. The presiding judge noted the father could therefore apply to set aside the orders under r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth), but the father has not since made any such application, nor did he file any appeal from those orders within the standard limitation period.
The upshot is that the final orders made on 6 August 2021 overtake and therefore render otiose the appealed interim orders made on 20 December 2018. Consequently, the dormant appeal was listed before me for the father to be given the opportunity to explain why the appeal should not now be dismissed for futility.
The Appeal Registrar gave written notice to the father of this Court event at each of his addresses for service which are discernible from the Court file, including the prison where the father was believed to be held, but there was no appearance by or on his behalf.
For the reasons given, the appeal is futile and is therefore summarily dismissed.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 28 September 2021
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