Provenza & Provenza (No 3) - [2025] FedCFamC1A 124

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Provenza & Provenza (No 3) [2025] FedCFamC1A 124

Appeal from: Order dated 20 February 2025

Appeal number(s): NAA 59 of 2025

File number(s): BRC 10235 of 2022

Judgment of: RIETHMULLER J

Date of judgment: 16 July 2025

Catchwords: FAMILY LAW – APPEAL – Recovery order – Where appellant father did not comply with the filing rules – Where the appellant did not attend the hearing – Where there is no merit in the appeal – Where the orders subject of the appeal are no longer operative – No utility in allowing the appeal – Appeal dismissed – No order as to costs.

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
1           Reece & Reece [2011] FamCAFC 24

2           Naparus & Frankham [2018] FamCAFC 190

3           Naparus & Frankham (No 2) [2020] FamCAFC 238 Pitman & Hynes (No 3) [2021] FamCAFC 82

Number of paragraphs: 13

Date of hearing: 16 July 2025

Place: Brisbane

The Appellant: Litigant in person (did not participate)

The Respondent: Litigant in person

Counsel for the Independent Children's Lawyer: Mr Kissick

Solicitor for the Independent Children's Lawyer: Norman and Kingston
ORDERS

NAA 59 of 2025

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:

RIETHMULLER J

DATE OF ORDER:

16 JULY 2025

THE COURT ORDERS THAT:
1.Appeal NAA59 of 2025 is dismissed.
2.There be no order with respect to the costs of the appeal.

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 a pseudonym Provenza & Provenza has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
RIETHMULLER J:

In this matter, the appellant has failed to appear before the court for the appeal hearing. The respondent mother and the Independent Children’s Lawyer (“ICL”) both appeared.
The parties have been in dispute about the care arrangements for their children since 2022. On the 31 January 2023, a Judicial Registrar made orders for the children to live with the respondent mother and spend time with the father on each alternate weekend and half of the school holiday periods (January Orders).
On 7 August 2023, the parenting orders were suspended with respect…

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 3)

Details

AGLC: Provenza & Provenza (No 3) [2025] FedCFamC1A 124
Case: [2025] FedCFamC1A 124
Decision Date: 16 July 2025

CaseChat Overview and Summary

In the matter of Provenza & Provenza (No 3), the appellant, Mr Provenza, sought to appeal against certain orders made by the Family Court of Australia. The dispute involved recovery orders and the failure of Mr Provenza to comply with filing rules. The appeal was heard by the Federal Circuit and Family Court of Australia in its appellate jurisdiction. Ms Provenza, the respondent, and the Independent Children's Lawyer were also parties to the proceedings.

The primary legal issues before the court were whether the appellant had complied with the necessary filing rules, his attendance at the hearing, the merits of the appeal, and the continued operability of the orders in question. Additionally, the court had to consider whether allowing the appeal would be of any utility given the circumstances.

The court found that Mr Provenza had not complied with the filing rules, and he did not attend the hearing, which was a significant procedural default. Furthermore, the court determined that there was no merit in the appeal as the orders subject to the appeal were no longer operative. Given these findings, the court concluded that there was no utility in allowing the appeal. Therefore, the appeal was dismissed, and no order was made regarding the costs of the appeal. This decision highlights the importance of procedural compliance in family law matters and the court's discretion in determining the utility of an appeal.

Orders

Orders of the court

NAA 59 of 2025

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:

RIETHMULLER J

DATE OF ORDER:

16 JULY 2025

THE COURT ORDERS THAT:

1. Appeal NAA59 of 2025 is dismissed.

2. There be no order with respect to the costs of the appeal.

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

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.

Appeal from:	Order dated 20 February 2025
Appeal number(s):	NAA 59 of 2025
File number(s):	BRC 10235 of 2022
Judgment of:	RIETHMULLER J
Date of judgment:	16 July 2025
Catchwords:	FAMILY LAW – APPEAL – Recovery order – Where appellant father did not comply with the filing rules – Where the appellant did not attend the hearing – Where there is no merit in the appeal – Where the orders subject of the appeal are no longer operative – No utility in allowing the appeal – Appeal dismissed – No order as to costs.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited:	1 Reece & Reece [2011] FamCAFC 24 2 Naparus & Frankham [2018] FamCAFC 190 3 Naparus & Frankham (No 2) [2020] FamCAFC 238 Pitman & Hynes (No 3) [2021] FamCAFC 82
Number of paragraphs:	13
Date of hearing:	16 July 2025
Place:	Brisbane
The Appellant:	Litigant in person (did not participate)
The Respondent:	Litigant in person
Counsel for the Independent Children's Lawyer:	Mr Kissick
Solicitor for the Independent Children's Lawyer:	Norman and Kingston

NAA 59 of 2025
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:	RIETHMULLER J
DATE OF ORDER:	16 JULY 2025