Pitman & Hynes (No. 3)

Case [2021] FamCAFC 82


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the appeal was re-listed to hear submissions about its utility – Where the dismissal order made by the primary judge superseded the appealed order, rendering the appeal nugatory – Where the appealed order was interlocutory – Where leave to appeal refused for futility – No order as to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 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…

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AGLC
Pitman & Hynes (No. 3) [2021] FamCAFC 82
Case
[2021] FamCAFC 82
Decision Date

CaseChat Overview and Summary

In the case of Pitman & Hynes (No. 3), the Family Court of Australia's Appeal Division dealt with an appeal brought by Ms. Pitman against Mr. Hynes. The dispute involved an application for review of a decision made by a Registrar, which had been adjourned, and subsequently dismissed by the primary judge. The appeal, initially filed by Ms. Pitman, was later joined by the Independent Children's Lawyer. The central legal issues before the court were whether the appeal had merit and if the dismissal of the review application rendered the appeal futile.

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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