FAMILY COURT OF AUSTRALIA
Pitman & Hynes (No. 3) [2021] FamCAFC 82
Appeal from: FCoA order (1) dated 31 August 2020 Appeal number(s):
EAA 133 of 2020
File number(s):
WOC 772 of 2011
Judgment of:
STRICKLAND, RYAN & AUSTIN JJ
Date of judgment:
25 May 2021
Catchwords:
FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where the appealed order adjourned an application for review of a Registrar’s decision – Where the appeal hearing was adjourned on the applicant’s application – Where the review application was then heard and dismissed by the primary judge – Where the appeal was re-listed to hear submissions about its utility – Where the dismissal order made by the primary judge superseded the appealed order, rendering the appeal nugatory – Where the appealed order was interlocutory – Where leave to appeal refused for futility – No order as to costs.
Legislation:
Family Law Act 1975 (Cth) Pt VII, ss 94(1)(a), 94AA(1),
Judiciary Act 1903 (Cth) s 78B
Family Law Regulations 1984 (Cth) reg 15A(1)(a)
Family Law Rules 2004 (Cth) r 6.07
Cases cited:
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Attorney-General for the State of New South Wales v XY [2014] NSWCA 466
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9
Bloch v Bloch (1994) 180 CLR 390; [1981] HCA 56
Bonan v Hadgkiss (2007) 160 FCR 29; [2007] FCAFC 113
Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91
Garning & Director-General, Department of Communities, Child Safety and Disability Services& Anor (2013) FLC 93-531; [2013] FamCAFC 28
Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21
Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 438
Pitman & Hynes [2021] FamCA 300
Division:
Appeal Division
Number of paragraphs:
18
Date of hearing:
16 April 2021 & 25 May 2021
Place:
Sydney
The Applicant:
Litigant in person
The Respondent:
Litigant in person (Did not participate)
Solicitor-Advocate for the Independent Children’s Lawyer
Mr Butt
Solicitor for the Independent Children's Lawyer:
Legal Aid NSW
ORDERS
EAA 133 of 2020
WOC 772 of 2011APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS PITMAN
Applicant
AND: MR HYNES
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
STRICKLAND, RYAN & AUSTIN JJ
DATE OF ORDER:
25 MAY 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed by the applicant on 7 October 2020 is dismissed.
2.The Application in an Appeal filed by the Independent Children’s Lawyer on 29 March 2021 is dismissed.
3.The oral application made by the applicant today to adduce further evidence is dismissed.
4.Leave to appeal is refused.
5.There be no order as to costs.
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…
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- AGLC
- Pitman & Hynes (No. 3) [2021] FamCAFC 82
- Case
- [2021] FamCAFC 82
- Decision Date
CaseChat Overview and Summary
The court considered that the dismissal of the review application by the primary judge superseded the initial order that had been appealed. Since the appealed order was interlocutory and its effect had been nullified, the court found the appeal to be futile. The court also noted that the subsequent dismissal of the review application by the primary judge made the original appeal obsolete. The court ultimately determined that there was no utility in proceeding with the appeal and dismissed both Ms. Pitman's and the Independent Children's Lawyer's appeals. Additionally, leave to appeal was refused, and no order as to costs was made.
In summary, the Appeal Division of the Family Court of Australia dismissed the appeals brought by Ms. Pitman and the Independent Children's Lawyer, finding them to be futile. The court refused leave to appeal and made no order as to costs. This decision underscores the importance of the timeliness and relevance of appeals in family law matters, particularly in relation to interlocutory orders.
Orders
Orders of the court
EAA 133 of 2020
WOC 772 of 2011
APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:
MS PITMAN
Applicant
AND:
MR HYNES
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
STRICKLAND, RYAN & AUSTIN JJ
DATE OF ORDER:
25 MAY 2021
THE COURT ORDERS THAT:
1. The Application in an Appeal filed by the applicant on 7 October 2020 is dismissed.
2. The Application in an Appeal filed by the Independent Children’s Lawyer on 29 March 2021 is dismissed.
3. The oral application made by the applicant today to adduce further evidence is dismissed.
4. Leave to appeal is refused.
5. There be no order as to costs.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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