Soltani & Yassin

[2022] FedCFamC1A 190

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Soltani & Yassin [2022] FedCFamC1A 190

Appeal from:	Soltani & Yassin [2022] FedCFamC2F 1348
Appeal number:	NAA 245 of 2022
File number:	MLC 4920 of 2019
Judgment of:	AUSTIN J
Date of judgment:	18 November 2022
Catchwords:	FAMILY LAW – APPEAL – Practice and procedure – Where the appeal was listed to clarify the nature and ambit of the appeal – Where the solitary ground of appeal as pleaded is incomprehensible – Where it is uncertain which orders are the subject of challenge – Where the appellant conceded the appeal attacks only the primary judge’s discretion under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) – Whereas the parenting orders are not subject to any challenge the Independent Children’s Lawyer should not be joined to the appeal – Where the part of the appeal related to the parenting cause is summarily dismissed – Where the appellant will have 14 days within which to file an Amended Notice of Appeal on default of which the remainder of the appeal is summarily dismissed – Orders made.
Legislation:	Family Law Act 1975 (Cth) Pts VII, VIII
Number of paragraphs:	14
Date of hearing:	18 November 2022
Place:	Newcastle (via video link)
Solicitor for the Appellant:	Souki Lawyers
Counsel for the Respondent:	Mr Mort
Solicitor for the Respondent:	Vassis & Co
The Independent Children's Lawyer:	Did not participate

ORDERS

NAA 245 of 2022
MLC 4920 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR SOLTANI

Appellant

AND:

MS YASSIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	AUSTIN J
DATE OF ORDER:	18 November 2022

THE COURT ORDERS THAT:

1.That part of the appeal which lies from Orders 1–15 inclusive made on 10 October 2022 is dismissed.

2.The Independent Children’s Lawyer is discharged as a party to the appeal.

3.The appellant shall file and serve an Amended Notice of Appeal in relation to Orders 16 and 17 made on 10 October 2022 within 14 days hereof, in default of which the remainder of the appeal 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 Soltani & Yassin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. On 10 October 2022, a judge of the Federal Circuit and Family Court of Australia (Division 2) made orders to finally determine proceedings between the appellant father and the respondent mother in respect of their minor children and the adjustment of their property interests under Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”).

2. The father appealed from those orders by way of Notice of Appeal filed on 7 November 2022.

3. The appeal was listed before the Court for further directions on 18 November 2022 to clarify its nature and ambit, given the incomprehensibility of the solitary ground of appeal and the uncertainty about the orders which are the subject of challenge.

4. These brief reasons explain the procedural orders now made to ensure the orderly progress of the appeal.

   The ground of appeal

5. The appeal comprises this single ground:

   1.The trial judge took into account a consideration that the Family Law Act 1975 (Cth) (Act) proscribes from consideration in adjusting the property interests of the parties in the marital asset pool.

   (As per the original)

6. The ground is grammatically unsound but, construed in the most benevolent way, it appears to complain that the primary judge erred by taking into account an irrelevant consideration when determining the financial cause between the parties in the exercise of discretion under Pt VIII of the Act.

7. The appellant confirmed that was the intended meaning of the ground. The ground of appeal should be re-pleaded to make that plain, as the respondent is entitled to know what case she needs to meet.

   The ambit of the appeal

8. The Notice of Appeal informs that the appeal lies from all 17 orders made by the primary judge under both Pt VII and Pt VIII of the Act, but that proposition must be false for two reasons.

9. First, the appellant conceded the single ground of appeal attacks only the primary judge’s exercise of discretion under Pt VIII of the Act, which means the appeal concerns only the financial orders (Orders 16 and 17).

10. Secondly, the appellant applies for a remedial order in the appeal setting aside only Order 16(c), again implying the limitation of the appeal to only the financial cause.

11. The parenting orders (Orders 1–15) are not the subject of any challenge, so the Independent Children’s Lawyer should not be joined to the appeal.

    Directions

12. The part of the appeal related to the orders determining the parenting cause under Pt VII of the Act is summarily dismissed.

13. The Independent Children’s Lawyer is discharged as a party to the appeal.

14. The appellant will have 14 days within which to file an Amended Notice of Appeal re-pleading the ground or grounds upon which he appeals from the orders determining the financial cause under Pt VIII of the Act. Commendably, he accepted the remainder of the appeal should be dismissed in default of compliance with that direction.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       18 November 2022