Provenza & Provenza (No 2)
[2025] FedCFamC1A 42
•13 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Provenza & Provenza (No 2) [2025] FedCFamC1A 42
Appeal from: Order dated 3 February 2025
Order dated 6 February 2025
Order dated 12 February 2025
Appeal number(s): NAA 61 of 2025
NAA 62 of 2025
NAA 63 of 2025File number(s): BRC 10235 of 2022
BRC 13723 of 2024Judgment of: AUSTIN J Date of judgment: 13 March 2025 Catchwords: FAMILY LAW – APPEAL – Practice and Procedure – Show cause – Where the appellant was invited to show cause why his appeals should not be summarily dismissed – Where the first appeal is from orders that do not determine any right or liability of either party and is incompetent – Where the second appeal has no prospect of success – Where the appellant conceded the first two appeals could be summarily dismissed – Where the grounds of appeal contained within the third appeal are misconceived – Appeals summarily dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) Pts VII, VIII
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 32, 46, 68B, 79A
Cases cited: Faldyn & Badenoch [2022] FedCFamC1A 170 Number of paragraphs: 31 Date of hearing: 13 March 2025 Place: Newcastle The Appellant: Litigant in person The Respondent: Litigant in person (did not participate) Counsel for the Independent Children's Lawyer: Norman & Kingston (did not participate) ORDERS
NAA 61 of 2025
NAA 62 of 2025
NAA 63 of 2025
BRC 10235 of 2022
BRC 13723 of 2024FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR PROVENZA
Appellant
AND: MS PROVENZA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
13 MARCH 2025
THE COURT ORDERS THAT:
1.Appeal NAA 61/2025 is dismissed.
2.Appeal NAA 62/2025 is dismissed.
3.Appeal NAA 63/2025 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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 JUDGMENT
AUSTIN J:
These reasons explain the summary dismissal of three appeals brought by the appellant father, none of which evinces any reasonable prospect of success (ss 32(3)(b), 46(2) and 46(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)).
To allow the appeals (or the applications for leave to appeal, as the case may be) to proceed to substantive hearing would needlessly waste the resources of both the Court and the respondent mother.
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 Family Law Act 1975 (Cth) (“the Act”). The father commenced financial proceedings between the parties under Pt VIII of the Act in November 2022. The financial cause was resolved to finality between the parties on 19 April 2023 by orders made with their consent, leaving only the parenting cause to determine.
The parties’ children were born between 2007 and 2014 and are presently aged between 16 and 10 years. In the parenting proceedings, numerous interim parenting orders were made in October 2022, December 2022, January 2023, August 2023, and November 2023.
Apparently by reason of procedural defaults by the father, the progress of the parenting proceedings to trial has been delayed, but the cause is now fixed for trial in August 2025.
Multiple sets of orders were made during February 2025 by three different judges of the Federal Circuit and Family Court of Australia (Division 2), with which the father is dissatisfied and from which he has appealed.
On 3 February 2025, a judge made two sets of orders in two different suit numbers.
The first set of orders dismissed interlocutory applications filed by the father in the parenting proceedings (BRC 10235/2022) in October 2024 and December 2024. The first appeal lies from those orders (NAA 42/2025).
The second set of orders dismissed an interlocutory financial application filed by the father in October 2024 in a different suit (BRC 13723/2024), vacated a Court event on 24 March 2025, and removed the separate financial cause from the active pending cases list. The fifth appeal is brought from those orders (NAA 63/2025).
On 6 February 2025, (in BRC 10235/2022) a judge adjourned the hearing of a contravention application until 17 April 2025 and reserved the mother’s costs of the day. The third appeal is brought from those orders (NAA 61/2025).
On 12 February 2025, (in BRC 10235/2022) a judge dismissed an interlocutory application filed by the mother but gave her liberty to re-list the parenting proceedings on short notice in the event of the father’s alleged non-compliance with interim parenting orders made in January 2023. The fourth appeal is brought from those orders (NAA 62/2025).
On 20 February 2025, (in BRC 10235/2022) a judge granted a recovery order authorising the forcible recovery of the parties’ eldest child from the father and made supplementary interim parenting orders concerning that child. The second appeal is brought from those orders (NAA 59/2025).
The first and second appeals will proceed to hearing by a single judge in due course. However, the third, fourth and fifth appeals were listed today to afford the father the chance to explain why they should not be summarily dismissed. He was notified of the hearing and its purpose by email sent by the appeal registrar on 26 February 2025.
APPEAL NAA 61/2025
These orders were made on 6 February 2025:
1.The matter is adjourned for contravention hearing for not more than one (1) day commencing at 10:00am on 17 April 2025 in the Federal Circuit and Family Court of Australia (Division 2) at Brisbane.
2.The [mother’s] costs for today are reserved.
(Emphasis in original)
No appeal lies from the procedural decision to adjourn the contravention hearing until 17 April 2025 (s 26(2)(b)(ii) of the FCFCA Act), so the appeal from Order 1 is incompetent and is summarily dismissed.
The order reserving costs in respect of that application is not a “judgment” because it does not determine any right or liability of either party, so no appeal lies from Order 2 either (Faldyn & Badenoch [2022] FedCFamC1A 170 at [9]–[20]) and it is also summarily dismissed.
The father expressly conceded this appeal could be summarily dismissed.
APPEAL NAA 62/2025
These orders were made on 12 February 2025:
1. The Mother’s Application in a Proceeding filed 10 February 2025 is dismissed.
2.If the Father does not comply with the parenting orders dated 31 January 2023 in respect of [the eldest child], the Mother is at liberty to re-list the matter on short notice before [the primary judge] to hear an application for those orders to be suspended.
Order 1 dismissed an interlocutory application brought by the mother for recovery orders, authorising the forcible recovery of the parties’ eldest child from the father. It is difficult to imagine why the father chooses to appeal from Order 1, as it cannot possibly be perceived as being disadvantageous to him. His grievances about the recovery order subsequently made on 20 February 2025 will be ventilated in the first appeal in due course.
The grounds of appeal asserted by the father within the Notice of Appeal to vitiate Order 1 are wildly extravagant and include these: judicial overreach (Ground 2), suppression of evidence by the mother (Ground 6), failure by the judge to prevent litigation abuse (Ground 8), judicial negligence (Ground 9), and various other statements and grievances which are not grounds of appeal at all (Grounds 7, 10, 11, 12, 13, 14 and 15).
The recognisable grounds of appeal include the denial of procedural fairness (Ground 1), improper exercise of discretion (Ground 2), misapplication of s 68B of the Act (Ground 3), improper issue of a recovery order (Ground 4), and failure to consider the best interests of the child (Ground 5), yet none of those complaints can be rationally raised to challenge an order dismissing the mother’s interlocutory application. The appeal from Order 1 has no prospect of success and is summarily dismissed.
Order 2 is a procedural order which does not determine any right or liability of either party, so the appeal from it is incompetent and is summarily dismissed. In any event, the mother later availed of the liberty granted by Order 2, which resulted in the recovery order being made on 20 February 2025, which order is the subject of the first appeal.
The father expressly conceded this appeal could be summarily dismissed.
APPEAL NAA 63/2025
These orders and notations were made on 3 February 2025:
1.That the Application in a Proceeding filed by the [father] on 4 October 2024 be dismissed.
2.That the compliance and readiness hearing listed at 9.30am on 24 March 2025 in the Federal Circuit and Family Court of Australia (Division 2) at Brisbane be vacated.
3.That this matter be removed from the active pending cases list.
IT IS NOTED:
A.That in the event the [father] intends to file an application pursuant to s.79A of [the Act] or a property enforcement application, any applicable application filing fee be waived.
B.That in the event [the father] intends to file an application in accordance with Notation A above, such application be filed on the court file number (P)BRC10235/2022 only.
Order 1 dismissed an application filed by the father seeking a panoply of orders giving him different forms of financial relief. Generally, he sought that the consent property settlement orders made in April 2023 be discharged, that the financial cause be re-opened, and that the mother be ordered to pay him money.
The father’s application was misconceived because the financial cause was concluded by the consent orders made in April 2023. To re-open it, he had to bring a fresh Initiating Application pleading the factual premises for the engagement of s 79A of the Act, which he did not do. His application was correctly dismissed by the primary judge (Order 1) and, since there was then no valid pending financial cause to entertain within the new suit number allocated to the invalid application, all Court events associated with it were then correctly expunged (Orders 2 and 3). The judge helpfully referred the father to the provisions of s 79A of the Act (Notation A) and correctly noted any subsequent s 79A application would need to be filed within the existing suit number (Notation B).
The father submitted his application could feasibly be construed to show his intended reliance upon s 79A of the Act, but that is not so. Advertence to the applications he filed on 4 October 2024 reveals no reference to s 79A of the Act or the confined premises upon which the financial cause could or should be re-opened. Moreover, the nature of the interlocutory relief sought by the father before engaging s 79A of the Act was misguided.
The 10 grounds of appeal pleaded by the father within his Notice of Appeal are nonsense, as they do not come to grips with the absence of jurisdiction to re-open the financial cause other than by his regular engagement of s 79A of the Act. The grounds say nothing about the appealed orders made by the judge on 3 February 2025.
The grounds within the Notice of Appeal all allege errors which supposedly vitiate the financial orders from being made in April 2023, even though those orders were made with the father’s consent. His numerous complaints about the unfairness of the orders made in April 2023, together with the unfairness of acts and omissions by the mother preceding the orders, have nothing to do with an appeal from the orders made on 3 February 2025. Nor do they have any traction at first instance until he mounts a sustainable case under s 79A of the Act.
DISPOSITION
The three appeals are summarily dismissed.
No question of costs arises because neither the mother nor the ICL appeared.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 14 March 2025
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