Pitter & Baier

[2024] FedCFamC1A 86

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Pitter & Baier [2024] FedCFamC1A 86

Appeal from:

Orders of 5 April 2024

Appeal number:

NAA 103 of 2024

File number:

BRC 16352 of 2022

Judgment of:

AUSTIN J

Date of judgment:

16 May 2024

Catchwords:

FAMILY LAW – APPEAL – Practice and procedure – Show cause – Where the appellant was invited to show cause why the appeal should not be summarily dismissed –Where the father appeals from interim orders – Where the primary judge has since pronounced final judgment and the interim orders were consequently discharged – Where there is no longer any justiciable controversy in respect of the interim orders and appellate jurisdiction is exhausted – Where the appeal has no reasonable prospect of success –Appeal summarily dismissed – Application in an Appeal to adduce further evidence in the appeal dismissed.

Legislation:

FamilyLaw Act 1975 (Cth) Pt VII

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.01

Cases cited:

AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615; [2023] HCA 26

Number of paragraphs:

11

Date of hearing:

16 May 2024

Place:

Newcastle (via Microsoft Teams)

The Appellant:

Litigant in person

The Respondent:

Litigant in person

Solicitor for the Independent Children's Lawyer:

Legal Aid Queensland

ORDERS

NAA 103 of 2024
BRC 16352 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR PITTER

Appellant

AND:

MS BAIER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	16 MAY 2024

THE COURT ORDERS THAT:

1.The Notice of Appeal filed on 2 May 2024 is dismissed.

2.The Application in an Appeal filed on 9 May 2024 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 Pitter & Baier has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. On 5 April 2024, a judge of the Federal Circuit and Family Court of Australia (Division 2) concluded a trial between the parties in respect of their two children under Pt VII of the FamilyLaw Act 1975 (Cth) (“the Act”).

2. Upon concluding the trial, the primary judge reserved judgment, but made some further interim orders to supplement the existing interim orders made on 30 December 2022, which would continue to operate until judgment was pronounced.

3. Relevantly, the new interim orders restrained the father from removing the children from the mother’s care (Order 5) and provided for a recovery order to issue to officers enabling the children’s recovery and return to the mother if the mother files an affidavit deposing to their removal by the father in breach of the injunction (Orders 2, 3, 4, 6 and 7).

4. The father filed an appeal from those orders on 2 May 2024, which was listed for hearing on 16 May 2024 to allow him the chance to explain why the appeal should not be summarily dismissed.

5. The grounds of appeal are pleaded in the Notice of Appeal as follows:

   1.Recovery Orders made for recovery appear to have been made without reason and with no consent from the father.

   2.[The primary judge] erred when mentioning the case is not commercial when I expressed viva voce at [City B] 0n 5/4/24 that my unrebutted affidavit stands as truth in commerce, and the truth is sovereign, therefore and unrebutted affidavit becomes judgement in commerce does it not?

   3.From a pragmatic standpoint, it is imperative to ascertain the specifics of the extant orders. Pending a final adjudication, it behoves us to reaffirm the existing directives concerning the children's relationship with both parents. Should any pertinent directives be omitted, it is incumbent upon the court to rectify this omission, ensuring that the children's access to their father is duly recognized and facilitated.

   4.Evidence that hinges on the paramount safety of the children was disregarded to be included and has developed with new evidence in support of the father’s initial concerns of the children being exposed to violence from the mother’s boyfriend as referenced in court oral submission of the father that he offered up to the court video footage of the children expressing the evidence.

   (As per the original)

6. Ground 1 seemingly has no reasonable prospect of success because, while it is true the recovery orders were made without the father’s consent, they were obviously made because the evidence adduced at trial convinced the primary judge the father may not comply with the injunction restraining his abduction of the children pending the pronouncement of final judgment and their recovery from him in the meantime might prove necessary.

7. Grounds 2, 3 and 4 are meaningless. They reveal no appealable error.

8. Quite aside from the lack of merit in the appeal, it is now entirely futile. Two days ago, on 14 May 2024, the primary judge pronounced final judgment. The interim orders from which the father wishes to appeal were consequently discharged upon the pronouncement of final orders and no longer exist (r 5.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)). There is no longer any justiciable controversy in respect of the interim orders and appellate jurisdiction is exhausted (AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615 at [32]–[35], [66], [68], [72]–[74] and [91]–[92]).

9. An appeal may be summarily dismissed if it lacks reasonable prospects of success, even if it is not hopeless or bound to fail (s 46(2) and s 46(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).

10. This appeal is hopeless and bound to fail, in which event it is summarily dismissed.

11. Since there will be no appeal, it is necessary to also dismiss the Application in an Appeal filed on 9 May 2024, by which the father seeks an urgent hearing of his appeal and leave to adduce further evidence in the appeal.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       17 May 2024