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:

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”).
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.
Relevantly, the new interim orders restrained the father from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pitter & Baier

Details

AGLC: Pitter & Baier [2024] FedCFamC1A 86
Case: [2024] FedCFamC1A 86
Decision Date: 16 May 2024

CaseChat Overview and Summary

Mr Pitter has appealed from interim orders made by a judge of the Family Court, with Ms Baier responding to the appeal. The Independent Children's Lawyer has also been involved in the proceedings. The appeal was initiated after the appellant was invited to show cause as to why the appeal should not be summarily dismissed. The interim orders in question have since been discharged by the primary judge, who has pronounced final judgment. As a result, there is no longer any justiciable controversy in respect of the interim orders, and the appellate jurisdiction is exhausted.

The legal issues before the court were whether the appeal had any reasonable prospect of success and if there was any justification for allowing the appellant to adduce further evidence in the appeal. The court examined the circumstances and concluded that the appeal had no reasonable prospect of success, and there were no grounds for permitting additional evidence. The court found that the appeal was effectively moot due to the final judgment that had been issued, rendering the interim orders obsolete.

The court dismissed the appeal on the basis that it lacked a reasonable prospect of success and that there were no compelling reasons to permit the appellant to present further evidence. The application to adduce further evidence in the appeal was also dismissed. The court's decision was based on the finality of the primary judge's judgment and the absence of a justiciable controversy regarding the interim orders.

The court ordered that the notice of appeal filed on 2 May 2024 and the application in an appeal filed on 9 May 2024 be dismissed. The form of the order is subject to review and potential variation as per the rules of the Federal Circuit and Family Court of Australia.

Orders

Orders of the court

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).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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

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

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