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:

1. 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.

2. 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).

3. On 7 August 2023, the parenting orders were suspended with respect to one of the children, X, who was then living with the father and spending alternate weekends with the mother. That arrangement was then reflected in orders that were made on an interim basis on 20 November 2023.

4. On Monday, 10 February 2025, the father retained Y, contrary to the terms of the interim parenting orders. The mother filed an urgent application seeking orders that Y be recovered from the father to her care.

5. The presiding judge made orders on 12 February permitting the matter to be listed on short notice to hear the application for the recovery of Y and to consider suspending the January Orders.

6. On the 19 February 2025, the father collected Y from school contrary to the terms of the January Orders. The mother filed another Application in a Proceeding on the same day.

7. On the 20 February 2025, the primary judge made orders for the father to return Y to the mother by 4:00 pm that day and suspended the father’s time with Y, restraining him from removing Y from school or from the mother’s care. The primary judge also made orders for a recovery order to be issued, but to lie in the registry to be available in the event that the father failed to return Y. Fortunately, he did return Y so Y did not have to suffer being recovered by the police which would have undoubtedly been distressing for him.  It is these orders that are the subject of this appeal.

8. Since then, on 27 March 2025, the father filed an interim application seeking variation of the orders with respect to Y. Further interim orders were made which now govern the arrangements for Y ‘s care. I was told this morning that the matter is listed for trial in approximately a month’s time before the primary judge.

9. Appeals will not usually be allowed, even if the grounds of appeal have some merit, if there would be no utility in allowing the appeal: see Reece & Reece [2011] FamCAFC 24 at [108]–[109]; Naparus & Frankham [2018] FamCAFC 190 at [4] and [17]; Naparus & Frankham (No 2) [2020] FamCAFC 238 at [46].

10. In Pitman & Hynes (No 3) [2021] FamCAFC 82 Austin J said:

    7. … there is now no utility in considering whether an application was adjourned in error when the application has since been heard and dismissed on its merits.

    8. The waste of resources in deciding an argument of no practical significance should be avoided, since the object of the judicial process is the final determination of the parties’ rights (Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at [47]; Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 438 at [16]). No public or genuine private interest in this appeal makes it desirable to determine the appeal on the merits (Bonan v Hadgkiss [2007] FCAFC 113; (2007) 160 FCR 29 at [10]; Garning & Director-General, Department of Communities, Child Safety and Disability Services & Anor [2013] FamCAFC 28; (2013) FLC 93-531 at [59]–[62]; Attorney-General for the State of New South Wales v XY [2014] NSWCA 466 at [116]–[118]).

11. In the present appeal, even if the appellant had appeared, there would be no practical significance or utility in allowing the appeal as there have been interim parenting decisions changing the parenting orders the subject of appeal since then. That is, the orders subject of this appeal are no longer operative – even if they were to be set aside, it would make no practical difference to the proceedings or to the parties.

12. Whilst the appellant set out a number of grounds of appeal, it does not seem to me that there is any public purpose in proceeding to consider those grounds in the circumstances of this particular case. I therefore dismiss the appeal primarily as a result of the appellant’s non-attendance and noting that even if he had attended, it appears to me that the appeal had no merit.

13. The mother does not seek costs, nor could she as she is unrepresented and therefore has not incurred costs in the proceedings. The ICL, in accordance with their grant of aid, formally seeks costs. However, the ICL had not filed a Schedule of Costs as required by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). In those circumstances, the appellant is not on notice of the costs application, and it is therefore not appropriate to make an order for costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Riethmuller.

Associate:

Dated:       18 July 2025