Reiter & Reiter

[2024] FedCFamC1A 62

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Reiter & Reiter [2024] FedCFamC1A 62

Appeal from:

Reiter & Reiter [2024] FCWA 40

Appeal number:

NAA 63 of 2024

File number:

3907 of 2021

Judgment of:

AUSTIN J

Date of judgment:

17 April 2024

Catchwords:

FAMILY LAW – APPEAL – Practice and Procedure – Summary dismissal – Where the appellant was invited to show cause why the appeal should not be summarily dismissed – Where several grounds of appeal (“grounds”) lie from consensual orders – Where grounds which lie from consensual orders are narrowly limited and are not alleged by the appellant – Where several grounds lie from orders that are procedural in nature and do not constitute a judgment from which an appeal competently lies – Where the appeal has no reasonable prospect of success – Appeal summarily dismissed.

Legislation:

Family Law Act 1975 (Cth) Pt VIII and Pt VIIIA, s 71A

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26, 32, 46

Cases cited:

Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28

Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49

Number of paragraphs:

20

Date of hearing:

17 April 2024

Place:

Newcastle (via Microsoft Teams)

Counsel for the Appellant:

Litigant in person

Solicitor for the Respondent:

Joss Legal

ORDERS

NAA 63 of 2024
PWC 3907 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR REITER

Appellant

AND:

MS REITER

Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	17 APRIL 2024

THE COURT ORDERS THAT:

1.The appeal is summarily 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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Reiter & Reiter has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. These reasons explain the summary dismissal of an appeal brought by the husband from orders made by a judge of the Family Court of Western Australia.

2. Although the appeal must ordinarily be heard and determined by the Full Court (s 32(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”), a single judge exercising appellate jurisdiction is empowered to summarily dismiss the appeal (s 32(3)(b) and s 32(5) of the FCFCA Act).

3. The summary dismissal of an appeal is permissible when it evinces no reasonable prospects of success, even if it is not hopeless and bound to fail (s 46(2) and s 46(3) of the FCFCA Act).

   Background

4. The parties to the appeal married in 1999 and separated years ago, though they dispute precisely when that occurred. It was certainly no later than July 2013.

5. In May 2021, the wife commenced proceedings seeking financial relief under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”).

6. After some considerable delay, the husband responded to the wife’s claim for relief in August 2022. He sought the outright dismissal of her application in reliance upon s 71A of the Act, contending the parties executed a financial agreement before their marriage, which was binding upon them and ousted the Court’s jurisdiction to entertain any application for relief under Pt VIII of the Act.

7. Subsequently, procedural orders were made for the preliminary issue about the existence of jurisdiction to be determined separately and so the dispute was listed before the primary judge on 21 February 2024, at which time the parties’ legal representatives agreed the issue could be determined on the papers without any cross-examination (at [17]).

8. The parties did indeed execute a financial agreement on 21 January 1999, two days before their marriage, but the husband’s counsel eventually conceded these facts and propositions before the primary judge (at [33]):

   (a)the financial agreement was executed before Pt VIIIA of the Act, dealing with financial agreements between spouses, commenced operation on 27 December 2000 (at [29]);

   (b)Pt VIIIA of the Act only applies to financial agreements executed after it commenced operation on 27 December 2000 (at [30]);

   (c)having been executed before that date, the subject financial agreement was not a “financial agreement” within the meaning of the Act and therefore did not operate to oust the Court’s jurisdiction to grant financial relief under Pt VIII of the Act (at [31]–[32]); but in any event

   (d)by its own terms, the financial agreement expressly stated it did not oust the Court’s jurisdiction to grant financial relief under the Act (at [38]).

9. The primary judge’s description of the scheme established by Pt VIIIA of the Act coincided with binding authority (Thorne v Kennedy (2017) 263 CLR 85 at [17]–[18]), so his Honour had no option but to dismiss the husband’s application seeking the dismissal of the wife’s substantive application on jurisdictional grounds (at [36] and [38]).

10. For reasons delivered ex tempore, the primary judge dismissed the husband’s Response filed in August 2022 (Order 1), ordered the husband to pay the wife’s modest fixed costs of the hearing in the sum of $2,414.50 (Order 7), and made a series of procedural orders designed to bring the wife’s application for substantive financial relief on for hearing swiftly (Orders 2–6).

11. By way of a Notice of Appeal filed on 18 March 2024, the husband appealed from all of those orders made on 21 February 2024.

12. The appeal was then listed on 17 April 2024 to afford the husband the chance to explain why the appeal should not be summarily dismissed by reason of it having no reasonable prospects of success.

13. By an email sent by the appeal registrar to the husband on 27 March 2024 he was informed this:

    … The hearing on 17 April 2024 at 9.30 am (WST) will not be a hearing of your appeal.

    The reason for the hearing is for you to explain to the Appeal Judge why the grounds of appeal you have included in your Notice of Appeal should not be struck out, or your appeal summarily dismissed. …

    (Emphasis in original)

14. The submissions made by the husband failed to establish the competence of the appeal.

    Disposition

15. The grounds of appeal are pleaded as follows:

    1.Section 1 the courts made the wrong decision in dismissal of our binding agreement as it was witnessed by Lawyers as well as an independent lawyer and again witnessed in front of a justice of the peace who was the mayor of [city]. Both of our intention were clear at time of signing. Because [the wife] had 7 properties of considerable acreage she was willing so as to protect her assets.

    2.        Covered by offer made at mediation.

    3.        Covered by binding agreement

    4.        Covered by offer at mediation

    5.        Settled out of court by offer made at mediation

    6.        Settled out of court by offer made at mediation

    7.[The wife] was well aware that there was a binding agreement in place but decided to continue and waste the court time so the fee should not be my responsibility Section seven Dismissed

    (As per the original)

16. None of the grounds of appeal discloses any recognisable ground of appeal. They do not assert any form of appealable error.

17. Due allowance is made for the husband now being without the advantage of legal representation in the appeal, but the disadvantage does not excuse his non-compliance with the law.

18. The husband’s counsel ultimately admitted to the primary judge that his application must necessarily be dismissed (at [33]) and he should pay the wife’s costs (at [45]), which makes the appeal against Orders 1 and 7 look forlorn, if not impossible, since the grounds of appeal which lie from consensual orders are narrowly limited to those which impugn the integrity of the parties’ agreement or deprive the Court of jurisdiction or power to pronounce judgment consummating the agreement (Harvey v Phillips (1956) 95 CLR 235 at 244). No such grounds are alleged here.

19. The other orders (Orders 2–6) are all procedural in nature and do not constitute, either individually or in aggregation, a “judgment” from which an appeal competently lies (s 26(1) of the FCFCA Act). That is because they do not determine the parties’ rights in any way (Commonwealth v Mullane (1961) 106 CLR 166 at 169).

20. No aspect of the appeal has any prospect of success. It would be futile to list it for substantive hearing before the Full Court. It is summarily dismissed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       17 April 2024