Rex & Arata

[2024] FedCFamC1A 242

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Rex & Arata [2024] FedCFamC1A 242

Appeal from:

Arata & Rex (No 5) [2024] FedCFamC1F 732

Appeal number:

NAA 320 of 2024

File number:

LEC 250 of 2021

Judgment of:

ALDRIDGE J

Date of judgment:

13 December 2024

Catchwords:

FAMILY LAW – APPEAL – Practice and procedure – Where the Notice of Appeal is prolix and vexatious in its current form – Where many of the grounds of appeal assert the primary judge erred by failing to accept the appellant’s case – Where it is inherently unlikely that a judge of the Federal Circuit and Family Court of Australia (Division 1) would make hundreds of errors material enough to vitiate the reasons – Notice of Appeal struck out – Where the appellant has leave to lodge an Amended Notice of Appeal for further consideration.

Cases cited:

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

House v The King (1936) 55 CLR 499; [1936] HCA 40

Tame v State of New South Wales (2002) 211 CLR 317; [2002] HCA 35

Number of paragraphs:

10

Date of hearing:

13 December 2024

Place:

Sydney (via video link)

The Appellant:

Self-represented litigant

Solicitor for the Respondent:

Burgess Family Law

The Independent Children’s Lawyer:

Did not participate

ORDERS

NAA 320 of 2024
LEC 250 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS REX

Appellant

AND:

MR ARATA

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	13 DECEMBER 2024

THE COURT ORDERS THAT:

1.The Notice of Appeal filed 28 November 2024 is struck out.

2.Leave is granted to the appellant to lodge an Amended Notice of Appeal on or before 21 February 2025.

3.The matter is listed for further directions at 10.00 am on 24 February 2025.

4.The respondent has leave to file an Application in an Appeal returnable on 24 February 2025 provided it has been served on the appellant.

5.The requirement of the appellant to file the draft appeal book index is stayed.

6.Costs of today are reserved.

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 Rex & Arata has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

ALDRIDGE J:

1. This appeal has been listed today for consideration of the course that should be taken in relation to it because of the form of the Notice of Appeal, which contains grounds extending over 107 pages of text. That must be seen in the context of the reasons the subject of appeal, which were delivered on 1 November 2024 and deal with both parenting orders in relation to the parties’ child and appropriate division of their property. The reasons are 82 pages long, together with schedules (being the parties’ chronologies), which take it out to a total of 150 pages. The reasons are approximately 80 per cent of the length of the Notice of Appeal.

2. A judgment is presumed to be correct until an appeals court is persuaded of error.

3. This is an appeal from a discretionary judgment and so the well known principles set out in House v The King (1936) 55 CLR 499 apply (at 504–505):

   …The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…

4. The High Court of Australia reaffirmed in Bondelmonte v Bondelmonte (2017) 259 CLR 662 that House v The King identifies the pathway for identifying error in a discretionary judgment. Accordingly, for a Notice of Appeal to be valid it must identify grounds of appeal consistent with those principles.

5. It follows that it is not a valid ground of appeal, for example, merely to assert that the primary judge erred by not accepting the appellant’s case. It is the fundamental task of a judge to choose between the parties’ competing contentions. Many of the grounds of appeal in the Notice of Appeal are simply assertions that the primary judge did not accept the case of the appellant.

6. Many of the grounds are also based on assertions that the primary judge failed to properly consider or adequately consider, and gave inappropriate weight to particular evidence or lack of particular evidence. Matters of weight, which each of those asserts in a different way, are not matters that demonstrate error of themselves.

7. It is well known that assertions of error as to weight face a high bar. See for example, Gronow v Gronow (1979) 144 CLR 513. Recently it has been made clear that they must be such as to render the outcome unreasonable or plainly wrong. It may well be that contained within the hundreds of grounds, sub-grounds, sub-sub-grounds and yet further sub-sub-sub-grounds that there may be some proper assertions of error that ought be the subject of consideration at an appeal hearing. But it is not the task of the Court or the task of the respondent who has to deal with the Notice of Appeal to trawl through such a lengthy document to try and find whether or not there might be some valid grounds of appeal. Indeed, the sheer length and relentless detail of the Notice of Appeal makes it oppressive and vexatious.

8. I am conscious that the appellant has been acting for herself and prepared the Notice of Appeal herself. I am also conscious that the orders particularly in relation to the parties’ child effected a substantial change in his living arrangements. It is therefore appropriate that if the Notice of Appeal is struck out, as I consider it should be, that the appellant have a further opportunity to prepare a proper Notice of Appeal.

9. However, what I propose to do is not give leave to file an Amended Notice of Appeal but rather merely leave to lodge one and I will then consider on the resumed hearing date whether or not leave should be granted to file it or whatever other orders should be made. In preparing the Amended Notice of Appeal, those doing so would be well advised to bear in mind the following words of McHugh J in Tame v State of New South Wales (2002) 211 CLR 317 where his Honour said (at [70]):

   It is inherently unlikely that any personal-injuries action would give rise to fourteen issues or that any intermediate appellate court in this country would make so many errors. Australian, as well as United States, counsel would be well advised to heed Judge Aldisert’s statement that when he sees “an appellant’s brief containing seven to ten points or more, a presumption arises that there is no merit to any of them”.

   (Footnote omitted)

10. This of course is an appeal from a primary hearing involving both parenting and property, but it is more than abundantly clear that it is inherently unlikely that a judge of the Federal Circuit and Family Court of Australia (Division 1) would make hundreds of errors material enough to vitiate the reasons.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge.

Associate:

Dated:       19 December 2024