Saso & Saso (No 2)

Case [2023] FedCFamC1A 179

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Saso & Saso (No 2) [2023] FedCFamC1A 179

Appeal from: Saso & Saso (No 2) [2023] FedCFamC2F 1196
Appeal number: NAA 278 of 2023
File number: BRC 881 of 2021
Judgment of: AUSTIN J
Date of judgment: 19 October 2023
Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the applicant wife seeks leave to appeal from procedural orders made by the primary judge in anticipation of the final hearing between the spouses – Where no appeal lies from a decision about the grant or refusal of an adjournment – Where the wife’s complaint that the primary judge denied her procedural fairness by not allowing her leave to rely upon the affidavits of three witnesses at trial is rejected – Where the procedural direction requiring the wife to file written submissions within a given period is not an appealable judgment –  Where the appeal has no reasonable prospects of success – Where the trial has been heard –Appeal summarily dismissed – No order as to costs.
Legislation:

Family Law Act 1975 (Cth) Pt VIII, s 102NA and s 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 46, 192

Cases cited:

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

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152; [2006] HCA 63

Yule v Junek (1978) 139 CLR 1; [1978] HCA 4

Number of paragraphs: 37
Date of hearing: 19 October 2023
Place: Newcastle (via Microsoft Teams)
The Applicant: Litigant in person
Counsel for the Respondent: Ms Dart
Solicitor for the Respondent: C & C Law

ORDERS

NAA 278 of 2023
BRC 881 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS SASO

Applicant
AND:

MR SASO

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

19 OCTOBER 2023

THE COURT ORDERS THAT:

1.The Amended Notice of Appeal filed on 19 October 2023 is dismissed.

2.The respondent’s application for costs is 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 Saso & Saso has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

  1. Subject to the grant of leave to bring it, this appeal by the wife lies from some selected procedural orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 14…

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AGLC
Saso & Saso (No 2) [2023] FedCFamC1A 179
Case
[2023] FedCFamC1A 179
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia Appellate Division was asked to decide an application for leave to appeal from procedural orders made in the course of financial relief proceedings under the Family Law Act 1975 (Cth) between the parties, Ms Saso and Mr Saso. The application was heard on 19 October 2023 and dismissed summarily by Austin J, who found that the appeal had no reasonable prospects of success. The appeal related to orders made by the primary judge on 14 September 2023. The wife was dissatisfied with the outcome of the first hearing of the proceedings in September 2022, and her appeal from the resulting judgment was allowed in May 2023. The primary judge made procedural directions to ensure the readiness of the proceedings for re-hearing in September 2023, but the wife did not comply with those directions. She filed an application seeking an adjournment of the trial for not less than three months and some supplementary procedural orders on the day the trial was to start. The wife’s application was partially granted, and the trial was adjourned for one month until 9 October 2023. The primary judge made further procedural orders to ensure the readiness of the proceedings for trial, which the wife was required to comply with. The wife filed an amended notice of appeal on the morning the appeal was listed, disclosing the intended appeal lies from all of the orders, but her amended grounds of appeal refer to only Orders 1, 3, 4, 5 and 6. The trial was heard on 9 October 2023, and the wife did not file and serve any evidence as required by the procedural orders. She was self-represented and unable to cross-examine the husband because of an embargo pursuant to s 102NA of the Act. The trial proceeded by way of submissions made by the husband’s counsel based on the available unchallenged evidence. The wife was not cross-examined by the husband’s counsel. The trial is now complete, save for the wife’s final submissions, which the primary judge will receive on 25 October 2023. The court considered the application for leave to appeal and found that no appeal lies from a decision about the grant or refusal of an adjournment. The procedural direction requiring the wife to file written submissions within a given period is not an appealable judgment. The wife’s complaint that the primary judge denied her procedural fairness by not allowing her leave to rely upon the affidavits of three witnesses at trial was rejected. The court found that the appeal has no reasonable prospects of success and dismissed the application for leave to appeal summarily. No order as to costs was made.

ORDERS:
1. The Amended Notice of Appeal filed on 19 October 2023 is dismissed.
2. The respondent’s application for costs is dismissed.

Orders

Orders of the court

NAA 278 of 2023

BRC 881 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS SASO

Applicant

AND:

MR SASO

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

19 OCTOBER 2023

THE COURT ORDERS THAT:

1. The Amended Notice of Appeal filed on 19 October 2023 is dismissed.

2. The respondent’s application for costs is 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).

Background

Background to the litigation

The appeal proceeding was listed for hearing on 19 October 2023 to afford the applicant the chance to make submissions as to how the proposed appeal enjoys reasonable prospects of success, so as to avoid its summary dismissal. She failed to discharge that burden.Background The parties are engaged in proceedings concerning financial relief under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”), which commenced in January 2021. The proceedings were first heard in September 2022, but the wife’s appeal from the resulting judgment was allowed in May 2023 and the proceedings were remitted for re-hearing (Saso & Saso [2023] FedCFamC1A 65). The primary judge assumed control of the litigation shortly afterwards and made procedural directions to ensure the readiness of the proceedings for re-hearing in September 2023. The wife did not comply with those directions. The day before the new trial was due to start on 6 September 2023, the wife filed an application seeking an adjournment of the trial for not less than three months and some supplementary procedural orders. The wife’s application was entertained on the day the trial was to start and was partially granted. The trial was adjourned, but only for one month until 9 October 2023, and the parties were ordered to disclose further documents to one another. In summary, the orders provided as follows:(a)further disclosure between the parties (Orders 2 and 3);(b)adjournment of the trial to 9 October 2023 (Order 5);(c)the refusal of permission for the wife to rely upon the evidence of certain witnesses at the trial (Order 6)(d)the grant of permission to the wife to rely upon the evidence of a doctor at the trial (Order 7);(e)procedural orders to ensure the readiness of the proceedings for trial (Orders 8 to 14);(f)the direction of the wife to file any submissions about the husband’s costs application (Order 4); and otherwise(g)the dismissal of the wife’s interlocutory application (Order 1). It is presently unclear whether the orders were pronounced orally in Court, but they were published with the reasons for judgment a week later on 14 September 2023. The wife filed an Amended Notice of Appeal on the morning the appeal was listed. It discloses the intended appeal lies from all of the orders, but her amended grounds of appeal refer to only Orders 1, 3, 4, 5 and 6. In the meantime, the trial was heard on 9 October 2023. The wife did not file and serve any evidence as required by the procedural orders, though the primary judge permitted her to rely upon an historical affidavit and financial statement. She was self-represented and unable to cross-examine the husband because of an embargo pursuant to s 102NA of the Act. She was not cross-examined by the husband’s counsel. The trial proceeded by way of submissions made by the husband’s counsel based on the available unchallenged evidence. The trial is now complete, save for the wife’s final submissions, which the primary judge will receive on 25 October 2023.Summary dismissal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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