Pitman & Hynes (No. 3)
[2021] FamCAFC 82
•25 May 2021
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the appeal was re-listed to hear submissions about its utility – Where the dismissal order made by the primary judge superseded the appealed order, rendering the appeal nugatory – Where the appealed order was interlocutory – Where leave to appeal refused for futility – No order as to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 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pitman & Hynes (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
AUSTIN J
This is an appeal from a procedural order made by a judge of the Family Court of Australia on 31 August 2020, the effect of which was to adjourn all outstanding applications between the parties until the final trial, then listed several months ahead. Importantly from the applicant’s perspective, that included the adjournment of her application to review a Registrar’s refusal to accept and file an application she tried to bring against the respondent alleging his past contempt of court orders.
The subject order made by the primary judge was in these terms:
1. All outstanding Applications be stood over to 18 January 2021 at 10:00am.
As can be seen, the primary judge neither dismissed nor granted the review application. Rather, consideration of it was deferred until the date upon which the trial of the substantive parenting proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) was to begin.
The trial between the parties in January 2021 was vacated by the primary judge about a week before it was due to start, since it was considered the trial should be conducted in person rather than electronically, which form of trial could not then be accommodated in the Sydney registry due to the COVID-19 pandemic restrictions.
The applicant’s appeal was listed for hearing before us on 16 April 2021, but was adjourned on her application because, in the meantime, the primary judge had re-listed her review application for hearing on 19 April 2021. Understandably, she wanted to press ahead with her underlying review application before the primary judge in preference to arguing an appeal before us about whether the application had been rightly or wrongly adjourned in August 2020.
As it transpired, on 19 April 2021, the primary judge dismissed the applicant’s application by an order made in these terms (Pitman & Hynes [2021] FamCA 300 at [37]–[41]):
4.The Application in a Case filed on 17 July 2020 by the Applicant, seeking a review of a decision by Registrar Ryan to reject a Contempt Application be dismissed.
That dismissal order superseded the appealed order made on 31 August 2020, thereby rendering this appeal entirely nugatory, since there is now no utility in considering whether an application was adjourned in error when the application has since been heard and dismissed on its merits.
The waste of resources in deciding an argument of no practical significance should be avoided, since the object of the judicial process is the final determination of the parties’ rights (Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at [47]; Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 438 at [16]). No public or genuine private interest in this appeal makes it desirable to determine the appeal on the merits (Bonan v Hadgkiss (2007) 160 FCR 29 at [10]; Garning & Director-General, Department of Communities, Child Safety and Disability Services& Anor (2013) FLC 93-531 at [59]–[62]; Attorney-General for the State of New South Wales v XY [2014] NSWCA 466 at [116]–[118]).
In fulfilment of the obligation of procedural fairness, the appeal was re-listed before us today to afford the applicant the opportunity to submit why the application for leave to appeal should not now be dismissed in the face of such facts, but no submission she made persuasively addressed the proposed appeal’s patent futility.
Within the last few business days, including as late as last evening, the applicant sought to file an application to adduce further evidence in the appeal, but the Appeals Registrar refused to accept the application and the accompanying affidavit for filing for various reasons explained by the Appeal Registrar to the applicant in an email. Given the documents were not filed, the applicant made an oral application before us this morning to adduce the further evidence. The application should be refused, principally because none of the material the applicant wants to place before us could properly be described as “evidence”, but in any event because unless leave to appeal is granted there will be no appeal within which to adduce the material upon which she wishes to rely.
It is therefore now unnecessary to address the question of whether or not the appealed order is even a “decree” from which an appeal validly lies under s 94(1)(a) of the Act (Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64; Commonwealth v Mullane (1961) 106 CLR 166 at 169).
Even if an appealable decree, nor need we consider whether the applicant should be refused leave to appeal from it (s 94AA(1) of the Act; reg 15A(1)(a) of the Family Law Regulations 1984 (Cth)) due to the edict that appellate intervention in matters of interlocutory practice and procedure requires particular caution when no question of general principle is at stake (Hogan v Australian Crime Commission (2010) 240 CLR 651 at [34]; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; Bloch v Bloch (1994) 180 CLR 390 at 395). Leave can be denied for the more pragmatic reason of futility.
It also becomes unnecessary to engage the applicant in debate about the aptness of the Notice of Constitutional Matter she filed on 15 October 2020, supposedly in conformity with s 78B of the Judiciary Act 1903 (Cth) and r 6.07 of the Family Law Rules 2004 (Cth).
Similarly, it is unnecessary to address the other applications respectively made by the applicant and Independent Children’s Lawyer to adduce further evidence in the appeal.
When the appeal hearing was adjourned at the applicant’s request on 16 April 2021, the Independent Children’s Lawyer informed the Court he did not seek costs. There could be no reasonable basis upon which he could seek costs for his attendance today and so there should be no order as to costs.
In my view, orders should be made in the following terms:
(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 in the appeal is dismissed.
(4)Leave to appeal is refused.
(5)There be no order as to costs.
RYAN J
I agree and have nothing to add.
STRICKLAND J
I agree with the orders proposed by Austin J and the reasons given for those orders.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justices Strickland, Ryan & Austin.
Associate:
Dated: 27 May 2021
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