SCVG & Estate of KLD

[2022] FedCFamC1A 213

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

SCVG & Estate of KLD [2022] FedCFamC1A 213

Appeal from:

SCVG & Estate of KLD (No 5) [2022] FedCFamC1F 818

Appeal number(s):

NAA 258 of 2022

File number(s):

SYC 4380 of 2008
SYC 5956 of 2016

Judgment of:

TREE J

Date of judgment:

14 December 2022

Catchwords:

FAMILY LAW – APPLICATION IN AN APPEAL – REVIEW – Review of appeal judicial registrar’s decision to refuse a Notice of Appeal for filing – Where an earlier order restrains the father from bringing any application under the Family Law Act 1975 (Cth) in relation to the children – Whether that order prohibits the father from filing an appeal from subsequent orders – Where an appeal is not an application – Where the proceedings do not relate to the children – Application allowed – Notice of Appeal to be accepted for filing.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

SCVG & KLD [2017] FamCAFC 95

SCVG & KLD (2018) 57 Fam LR 194; [2018] FamCAFC 26

SCVG & KLD (No. 2) [2016] FamCAFC 23

Number of paragraphs:

12

Date of hearing:

12 December 2022

Place:

Cairns (via video link)

The Applicant:

Self-represented litigant

Solicitor for the First Respondent:

Macphillamy’s Lawyers (filed submitting notice on 9 December 2022)

Solicitor for the Second Respondent:

Sparke Helmore Lawyers

ORDERS

NAA 258 of 2022
SYC 4380 of 2008
SYC 5956 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR SCVG

Applicant

AND:

THE ESTATE OF KLD

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

order made by:	TREE J
DATE OF ORDER:	14 december 2022

THE COURT ORDERS THAT:

1.The Notice of Appeal dated 22 November 2022 be accepted for filing.

2.Otherwise the Amended Application in an Appeal filed 2 December 2022 be 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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 SCVG & Estate of KLD has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

TREE J:

introduction

1. By orders made on 26 October 2022, a judge of the Federal Circuit and Family Court of Australia (Division 1) dismissed various proceedings brought by Mr SCVG (“the father”). Subsequently, within the time stipulated in the relevant court rules, the father sought to file an appeal from those orders, but on 22 November 2022 an appeal judicial registrar rejected the filing of the Notice of Appeal. Now, by Amended Application in an Appeal filed 2 December 2022, the father seeks a review of that decision.

2. The estate of the late Ms KLD, which is the first respondent to the Notice of Appeal, filed a submitting notice. The second respondent Child Support Registrar appeared, but neither supported nor opposed the father’s Application in an Appeal.

3. For the reasons which follow, I will direct that the Notice of Appeal be accepted for filing.

   background

4. The father has an extensive history of litigation with his former wife, Ms KLD, and after her death, her estate (collectively “the mother”) in the family law courts, spanning at least 20 years.

5. A trial before Cronin J of parenting proceedings concerning the parties’ two children (“the children”) concluded with final orders being made on 27 February 2015. Amongst those orders was Order 7, which relevantly provided that “the father is restrained from bringing any application under the Family Law Act relating to [the children] without leave of a Judge of the Family Court of Australia”.

   consideration

6. The issue which this review raises is whether that order prohibits the father from filing an appeal from the primary judge’s 26 October 2022 orders, and particularly whether the proposed appeal is an “application under the Family Law Act relating to [the children]”.

7. The first answer is that an appeal is not an application, and hence not within the scope of the 27 February 2015 restraint. Indeed, no point about any such restraint was raised by the mother to resist a subsequent Application in an Appeal which unsuccessfully sought an extension of time to appeal from the 27 February 2015 orders (SCVG & KLD (No. 2) [2016] FamCAFC 23).

8. The second answer is that even if the Notice of Appeal lodged on 22 November 2022 is an application, it does not relate to the children. That is because the proceedings before the primary judge were:

   (a)an application to set aside costs orders made by Cronin J on 20 August 2015, arising from the earlier determination of the parenting proceedings;

   (b)an application to set aside orders made on 15 April 2015 by a judge of the then Federal Circuit Court of Australia, dismissing an appeal from a decision of the SSAT refusing to made a child support assessment departure order;

   (c)an application to vary historical child support assessments;

   (d)applications to set aside previous orders of the primary judge dismissing the father’s application to review three costs assessments arising from costs orders made in earlier proceedings before the primary judge.

9. It could not seriously be contended that any of those related to the children, as distinct from relating to a costs order, costs assessments and child support assessments. Indeed no such point was taken by the mother before the primary judge, nor in earlier appeals challenging the 20 August 2015 costs order and the Federal Circuit Court orders of 15 April 2015 (see SCVG & KLD [2017] FamCAFC 95), nor indeed in a subsequent application to set aside the orders made by the Full Court in those appeals (see SCVG & KLD (2018) 57 Fam LR 194). Moreover, given both children are now over 18 years old, no application relating to them could be brought.

10. Order 7 of the 27 February 2015 orders does not prohibit the father from filing an appeal from the 26 October 2022 orders.

    conclusion

11. I direct that the Notice of Appeal lodged with the registry on 22 November 2022 be accepted for filing.

    costs

12. No party sought any orders for costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree.

Associate:

Dated:       14 December 2022