Qajar & Manesh
[2024] FedCFamC1A 117
•16 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Qajar & Manesh [2024] FedCFamC1A 117
Appeal from: Qajar & Manesh [2024] FCWA 111 Appeal number: NAA 160 of 2024 File number: 765 of 2024 Judgment of: AUSTIN J Date of judgment: 16 July 2024 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks expedition of his appeal from the dismissal of interim spousal maintenance applications – Where the appellant conceded the appeal could not be properly ready for hearing until late August or early September – Where the appeal is not of sufficient urgency to warrant displacing other appeals already listed in sittings of the Full Court – Application for expedition of the appeal hearing dismissed – Where the appellant seeks leave to adduce further evidence in the appeal – Where applications for leave to adduce further evidence in the appeal should ordinarily be heard at the same time as the appeal – Application adjourned for hearing by the Full Court. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32, 35, 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.14, 13.39
Number of paragraphs: 21 Date of hearing: 16 July 2024 Place: Newcastle (via Microsoft Teams) Counsel for the Appellant: Litigant in person Counsel for the Respondent: Litigant in person (did not participate) ORDERS
NAA 160 of 2024
765 of 2024FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR QAJAR
Appellant
AND: MS MANESH
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
16 JULY 2024
THE COURT ORDERS THAT:
1.In respect of the Application in an Appeal filed on 10 July 2024:
(a)the application to expedite the hearing of the appeal (and any attendant application for leave to appeal) is dismissed; and
(b)the application to adduce further evidence in the appeal is adjourned for hearing by the Full Court in conjunction with the appeal (or the application for leave to appeal).
2.The time for the appellant to file the draft appeal book index is extended to 30 July 2024.
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 Qajar & Manesh has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
On 27 June 2024, the appellant filed a Notice of Appeal in respect of orders made by a judge of the Family Court of Western Australia on 30 May 2024.
Then, on 10 July 2024, the appellant filed an Application in an Appeal seeking two forms of interlocutory relief: first, expedition of the appeal hearing; and secondly, leave to adduce further evidence in the appeal.
For the reasons which follow, the expedition application is dismissed and the application to adduce further evidence in the appeal is adjourned for consideration by the Full Court.
Background
The parties married overseas in 2013, moved to Australia in 2019, and separated in late 2023.
The appellant commenced proceedings against the respondent seeking several forms of financial relief on an interlocutory and final basis in January 2024. The respondent filed process to oppose the application in March 2024. In effect, she sought the dismissal of the appellant’s applications for interim relief and the summary dismissal of his applications for final relief.
The parties’ competing applications were listed for hearing before the primary judge on 30 May 2024, resulting in the ex tempore pronouncement of orders and reasons.
In summary, the primary judge: dismissed the appellant’s applications for both urgent spousal maintenance and interim spousal maintenance (Order 1); summarily dismissed one aspect of the appellant’s application for final financial relief (Order 2); otherwise dismissed all outstanding interim and interlocutory applications and responses (Order 3); made a series of procedural orders designed to ensure the readiness of the proceeding for trial in 2025 (Orders 4–12); and reserved the parties’ costs of the interlocutory dispute (Order 13).
In support of this interim application, the appellant sought to rely upon:
(a)his affidavit filed on 10 July 2024; and
(b)various documents irregularly annexed to the Application in an Appeal, described collectively as LET-1 and LET-2.
Expedition
The underlying premise of the expedition application is that the appellant’s interlocutory applications for both urgent and interim spousal maintenance did not attract the immediate attention they allegedly deserved at first instance and so the appellant now wants to avoid the repetition of that situation in the appellate proceeding.
The appellant deposed this in his affidavit:
7.One of the most egregious aspects of the original matter in the [Family Court of Western Australia] was that, although the application was formally identified as urgent from the outset, it did not receive the appropriate treatment. Despite the initial orders reflecting the urgency of the matter, the application was not handled with the required urgency. …
8.Therefore, due to the extreme financial distress, the appellant is pursuing an urgent appeal and seeks the expedition of the appeal through an order for an urgent listing. …
The appellant also makes various allegations of misconduct or incompetence against the primary judge and a registrar, but it is not immediately apparent how his strongly held views in that regard bear upon the question of whether the hearing of his appeal should be expedited. Such complaints only ostensibly affect the validity of the judgment under appeal, not the speed with which the appeal should be heard.
The appellant’s two interlocutory spousal maintenance applications were dismissed because, irrespective of his asserted need for maintenance, the primary judge found the respondent had no capacity at all to pay it (at [34]–[42] and [45]). Although the parties’ evidence was untested (at [43]), that is usually the case in interlocutory hearings.
While the appellant asserts his penury while awaiting the determination of the appeal justifies an early hearing of it, that situation does not distinguish him from many other litigants awaiting the hearing of their appeals. As things stand, according to the findings within the reasons for judgment, the appellant lives alone in rented accommodation (at [26]) and he admits receipt of meagre income from a business he has established with others (at [27]–[30]). The primary judge found the appellant did not adequately explain the alleged margin by which his weekly expenses exceed his weekly income (at [31] and [32]). Nor did the appellant broach the subject of his financial circumstances in the affidavit filed in support of the expedition application, save for asserting his “severe” and “extreme” financial distress (at [6] and [8]).
This Court is bound by the statutory mandate to conduct litigation before it as quickly, inexpensively and efficiently as possible (s 67(1)(b) Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)). In the ordinary course of events, the appeal will be heard by late October 2024 at latest – which is about 3 months hence. The draft appeal book index is not even due to be filed by the appellant until 25 July 2024 (r 13.14(2)(a)(i) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)), which is the first step to be taken in any appeal, but the appellant asked for a little more time to file it. The grant of extra time will tend to push out the appeal hearing.
The appellant conceded the appeal could not be properly ready for hearing until late August or early September 2024, so the expedition application devolved to a dispute over a period of only about 6–8 weeks at most. No submission made by the appellant persuaded that this appeal should displace another appeal already listed in an earlier sitting of the Full Court, thereby causing prejudice to those other litigants, or that the Court should incur the administrative inconvenience of specially convening a Full Court to accommodate the early hearing of his appeal.
The expedition application is dismissed. The appeal will be heard soon enough in September or October 2024.
Further evidence
The appellant alleged his attempt to adduce evidence at first instance was “hindered” and “unjustly denied” by the primary judge. He deposed this in his affidavit:
10.Unfortunately, my ability to introduce these significant evidential materials not only was hindered during the [Federal Court of Western Australia] proceedings, but also was unjustly denied by arrogant conduct of [the primary Judge] during the interim hearing. Therefore, it is imperative that the court permits me to add these documents in support of my arguments.
(As per the original)
In relation to the evidence relied upon by the appellant at first instance, the primary judge said this in the reasons for judgment:
8.The [appellant] relies on his affidavits filed on 31 January 2024 and 25 March 2024, and his financial statement filed on 31 January 2024. I record that he filed a lengthy letter yesterday, addressed to me, in which he purported to seek a range of orders and to make various complaints and submissions. Those complaints extended to criticism of the conduct of the [respondent] and her former lawyer, but also went further to refer in derogatory terms to the Principal Registrar of the Court. The [appellant] asserted what he described as a "reasonable belief" that various issues he experienced in endeavouring to file documents, and navigate the Court Portal, were "the result of deliberate meddling from the Registry, under the guide of the Court's Principal Registrar."
9.For obvious reasons, that letter is not in evidence and I have no regard to it other than to the very limited extent that it makes relevant submissions. …
In breach of r 13.39(2) of the Rules, the appellant neither identifies the further evidence he wishes to adduce in the appeal nor the grounds to which the evidence relates, either in his application or the supporting affidavit. However, the evidence may be presumed to be the documents irregularly annexed to the Application in an Appeal labelled LET-1 and LET-2, the latter of which incorporates the letter the appellant sent to the primary judge, referred to in the reasons for judgment (at [8]–[9]), and the documents annexed to the appellant’s affidavit, which comprise court orders and correspondence. Even so, it remains quite unclear at this point how the proposed further evidence will help vindicate any of the existing grounds of appeal.
An application for leave to adduce further evidence in the appeal under s 35(b) of the FCFCA Act should ordinarily be heard at the same time as the appeal (or the application for leave to appeal) pursuant to r 13.39(4) of the Rules.
This appeal (and any anterior application for leave to bring it) must be heard by the Full Court (s 32(1)(b) of the FCFCA Act), in which event this aspect of the Application in an Appeal should best be adjourned for hearing by the Full Court.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 17 July 2024
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