Provenza & Provenza (No 2) - [2025] FedCFamC1A 42

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 2025

File number(s): BRC 10235 of 2022
BRC 13723 of 2024

Judgment 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 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
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…

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 Provenza & Provenza (No 2)

Details

AGLC: Provenza & Provenza (No 2) [2025] FedCFamC1A 42
Case: [2025] FedCFamC1A 42
Decision Date: 13 March 2025

CaseChat Overview and Summary

In Provenza & Provenza (No 2), the father, Mr Provenza, appealed several decisions made by different judges of the Federal Circuit and Family Court of Australia (Division 2) in relation to parenting orders and financial applications. The mother, Ms Provenza, responded to the appeals, arguing for their dismissal. The case involved numerous interim parenting orders and financial applications between the parties, with the parenting proceedings still pending trial. The father appealed specific orders made on various dates in February 2025, concerning interlocutory applications, costs, and a contravention application. The mother contended that the appeals were misconceived and should be summarily dismissed. The court was required to determine whether the father had valid grounds for appeal and whether the appeals should proceed to a substantive hearing or be summarily dismissed.

The court found that the first appeal from orders dismissing interlocutory applications filed by the father in the parenting proceedings and the second appeal from orders dismissing an interlocutory financial application and vacating a court event were both misconceived and lacked a reasonable prospect of success. The father conceded these appeals could be summarily dismissed. The third appeal, from orders adjourning a contravention application until a later date and reserving the mother's costs, and the fourth appeal, from orders dismissing an interlocutory application filed by the mother, were also misconceived and had no reasonable prospect of success. The fifth appeal, from orders granting a recovery order and making supplementary interim parenting orders concerning the parties' eldest child, similarly lacked merit. The court concluded that allowing the appeals to proceed would waste judicial resources, and the father's grounds of appeal were misconceived.

The court summarily dismissed all five appeals. The father's appeals from the orders made on 3 February 2025 (NAA 42/2025), 6 February 2025 (NAA 61/2025), 12 February 2025 (NAA 62/2025), 20 February 2025 (NAA 59/2025), and 6 February 2025 (NAA 63/2025) were dismissed. No order was made as to costs. The decision underscored the importance of ensuring that appeals are not pursued frivolously and that judicial resources are not wasted on baseless appeals.

Orders

Orders of the court

NAA 61 of 2025

NAA 62 of 2025

NAA 63 of 2025

BRC 10235 of 2022

BRC 13723 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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.

Background

Background to the litigation

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

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 61 of 2025 NAA 62 of 2025 NAA 63 of 2025 BRC 10235 of 2022 BRC 13723 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR PROVENZA Appellant
AND:	MS PROVENZA Respondent
INDEPENDENT CHILDREN'S LAWYER

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 2025
File number(s):	BRC 10235 of 2022 BRC 13723 of 2024
Judgment 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)

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	13 MARCH 2025