Provenza & Provenza
[2024] FedCFamC1A 213
•12 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Provenza & Provenza [2024] FedCFamC1A 213
Appeal from: Orders of 15 July 2024 Appeal number: NAA 191 of 2024 File number: BRC 10235 of 2022 Judgment of: AUSTIN J Date of judgment: 12 November 2024 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Parenting – Where the father appeals against interlocutory orders – Where the primary judge made orders for the parties to share equally in the costs of the family report – Where the primary judge made orders adjourning the matter for a possible undefended hearing – Where the orders are procedural in nature and do not constitute a judgment from which an appeal competently lies – Where neither order is decisive of either parties’ rights under Pt VII of the Family Law Act 1975 (Cth) – Leave to appeal refused – Where the mother and the Independent Children’s Lawyer filed Submitting Notices – No order as to costs. Legislation: Family Law Act 1975 (Cth) Pts VII, VIII
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.33, 10.27
Cases cited: Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Number of paragraphs: 32 Date of hearing: 12 November 2024 Place: Newcastle (via Microsoft Teams) The Applicant: Litigant in person The Respondent: Did not participate Solicitor for the Independent Children's Lawyer: Did not participate ORDERS
NAA 191 of 2024
BRC 10235 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR PROVENZA
Applicant
AND: MS PROVENZA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
12 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The Notice of Appeal filed on 24 July 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 Provenza & Provenza has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
This application for leave to appeal is brought by the father from interlocutory orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) in parenting proceedings contested between the parties in respect of their three children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
Although the mother and the Independent Children’s Lawyer (“the ICL”) both filed Submitting Notices, the application is dismissed for the following reasons.
Background
The parties separated in June 2022 and, shortly afterwards, the mother commenced proceedings against the father seeking parenting orders under Pt VII of the Act.
The parties’ children were born between 2007 and 2014. They are presently aged between 16 and 10 years.
Numerous interim parenting orders were made between the parties in October 2022, December 2022, January 2023, August 2023, and November 2023.
Pursuant to procedural orders made in October 2022, a family report was prepared and released to the parties in December 2022, the cost of which was born by the parties in equal shares.
In November 2023, the registrar fixed the proceeding for a compliance and readiness hearing before the primary judge two months ahead in January 2024.
At the compliance and readiness hearing in January 2024, his Honour decided an updated family report would be required before the cause could proceed to trial, so the compliance and readiness hearing was adjourned for six months until July 2024 and the primary judge made these further procedural orders:
…
3.That the parties attend upon [the court child expert] for the purposes of an updated family report as arranged by the [ICL].
4.That the parties are to share in the costs of the report equally.
5.That any failure to attend upon [the court child expert] in accordance with these orders may result in a party being in default and have his or her response/application dismissed.
At the next compliance and readiness hearing in July 2024, the ICL informed the primary judge the father and youngest child did not attend upon the court child expert in May 2024 for their scheduled interviews, which failure the father admitted but maintained was due to circumstances beyond his control.
The father alleged he was detained by the police at a police station when he reported under existing bail conditions, but he was unspecific about the circumstances under which that occurred. He alleged he went to the police station with the youngest child in his company when on their way to see the court child expert and was then detained. He alleged he telephoned the ICL from the police station to inform him of the predicament.
The father did not produce for inspection any document which would verify his involuntary detention at the police station at the time which clashed with the scheduled court child expert interview. Nor did he seek leave to adduce any such evidence in this appeal, which omission is significant in the face of the primary judge having told the father that day of his need to later obtain and produce such corroborative documentary evidence.
The ICL filed an affidavit on 12 July 2024 setting out his version of the events, whose evidence established the existence of email correspondence between the father and the ICL in advance of the scheduled interview with the court child expert in which the father foreshadowed his refusal to attend the interview, inviting the inference his alleged detention at the police station was not the reason for his failure to attend his interview with the court child expert at all.
By email sent by the ICL to the father on 17 May 2024, the father was informed his interview with the court child expert was fixed for 8.15 am on 23 May 2024.
The father sent a reply email to the ICL eight minutes later saying:
You have already been advised I will not be in attendance and welcome you to bring the matter before the court.
(Annexure AMK5 to the ICL’s affidavit filed 12 July 2024)
The reason why the father refused to attend upon the court child expert can be inferred to be his dissatisfaction with her professional performance, as this exchange occurred between the father and his Honour at the Court event in July 2024:
HIS HONOUR: …Okay. [The ICL] says that the mother wants the matter listed for an undefended hearing on the basis that you failed to attend [the court child expert]. What do you say?
[The father]: [MR PROVENZA]: I had no opportunity to – to – the advice was, yes, I objected, I objected all the way along. [The court child expert] recorded the previous day – the previous – the day of – on the day. She then refused to produce that recording because the statements I had made are being incorrectly recorded, etcetera.
(Transcript 15 July 2024, p.10 lines 29–36)
Having heard from the ICL and the mother about the father’s refusal to attend upon the court child expert to facilitate the preparation of an updated family report, meaning he was in breach of the earlier orders made by the primary judge in January 2024, the primary judge did not dismiss the father’s extant application, as was foreshadowed by Order 5 made on 22 January 2024. Instead, his Honour made these orders:
1.That the costs of the preparation of the family report of [the family report writer] are to be paid by the parties equally by no later than 22 July 2024.
2.That the matter is adjourned to 9.30am on 27 August 2024 for a possible undefended hearing in Federal Circuit and Family Court of Australia (Division 2) at Brisbane.
(Emphasis altered)
The primary judge has since notified the parties and the ICL by email that the date specified within Order 2 has been varied to 5 December 2024.
The father sought leave to appeal from both orders made on 15 July 2024.
The proposed appeal
No appeal competently lies from either order because neither is a “judgment” (Commonwealth v Mullane (1961) 106 CLR 166 at 169). Neither order is decisive of either parties’ rights under Pt VII of the Act or of any other legal right they enjoy. Both orders are exclusively procedural in nature. The primary judge understandably did not publish any reasons because there was no “judgment” to explain.
Even if an appeal did validly lie from Order 1, the appeal would be utterly futile. The discharge of Order 1 for some proven error would not displace Order 4 formerly made by the primary judge on 22 January 2024, which identically requires the father to pay an equal share of the costs associated with the updated family report.
The father’s complaint about Order 2 can only be interpreted to be his dissatisfaction with the unrealised prospect of the parenting cause being determined by way of “undefended hearing”, about which two obvious points can be made.
First, the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) make express provision for proceedings to be heard and determined on an undefended basis, or at least with one party’s constricted involvement, by reason of that party’s proven default in compliance with procedural orders (r 1.33 and r 10.27(2)). On the current state of the evidence in this appellate proceeding, there is no doubt the father is in default of the orders made in January 2024 requiring him to attend upon the court child expert for the updated family report.
Secondly, even if it be assumed that Order 2 means the father might yet be precluded from any form of participation in the final trial, that question remains to be determined by the primary judge. The decision will not now be made until 5 December 2024. So far, no order of adverse consequence has been made against the father. If the primary judge subsequently determines the father should be precluded from full participation in the final trial then, in any appeal which lies from final judgment under Pt VII of the Act, the father will be able to agitate a complaint of error about the interlocutory procedural decision to the extent he is able to demonstrate how it vitiates the final judgment (Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 482–484 and 494–497).
It is accordingly unnecessary to consider the father’s proposed grounds of appeal but, without reciting them verbatim, they can be addressed briefly to explain their invalidity.
Ground 1 is not a ground of appeal. It is a statement of the father’s belief that the primary judge does not understand how the parties’ two sons are “neurodivergent” or how the father has “trouble articulating [himself] in high stimulaus (sic) environments”.
Grounds 2, 3, 4, 5 and 6 are complaints about the professional performance of the ICL. They are not grounds of appeal asserting appealable error by the primary judge.
Ground 7 is not a ground of appeal. It is the father’s version of what happened on the day of the court child expert interview and again at Court on 15 July 2024.
Ground 8 is not a ground of appeal. It is a grievance about the fairness of property settlement orders made between the parties in April 2023 with his consent, which is an entirely different cause of action.
Grounds 9 and 10 are not grounds of appeal. They are statements of the father’s belief that the litigation has not been conducted efficiently enough to this point.
Assuming the proposed appeal was competent and could succeed, the remedial orders sought by the father stray far beyond the remedial power which could be wielded in the exercise of appellate jurisdiction to rectify an error vitiating procedural orders made in a parenting cause, so his expectations of what may be achieved by the appeal are entirely misconceived. The father proposes interim parenting orders (proposed Orders 2, 3, 4 and 15), the discharge of the ICL (proposed Order 10), the revision of the financial orders formerly made with his consent under Pt VIII of the Act (proposed Order 7), more interim financial orders under Pt VIII of the Act (proposed Orders 9, 11 and 12), belated costs orders in respect of the concluded financial cause (proposed Order 13), permission to issues subpoenas (proposed Order 8), and orders discharging the court child expert, appointing another court child expert, and varying the parties’ liability for the costs associated with the discharged court child expert (proposed Orders 14–18).
Disposition
The application for leave to appeal is dismissed.
As the mother and the ICL both filed Submitting Notices, no question of costs arises.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 13 November 2024
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