Swinbank & Stein
[2022] FedCFamC1A 182
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Swinbank & Stein [2022] FedCFamC1A 182
Appeal from: Swinbank & Stein (No 2) [2022] FedCFamC1F 731 Appeal number: NAA 235 of 2022 File number: CSC 103 of 2021 Judgment of: AUSTIN J Date of judgment: 10 November 2022 Catchwords: FAMILY LAW – APPEAL – Practice and procedure – Where the appeal was listed to afford the self-represented appellant the opportunity to rectify his incompetent grounds of appeal – Where the appeal, even if successful would be futile as it does not challenge an earlier declaration that the parties were never in a de facto relationship – Where the pleaded grounds are hopelessly inadequate – Where the appellant is granted leave to appeal from the earlier declaration out of time – Where in default of an Amended Notice of Appeal being filed within 14 days the appeal is summarily dismissed – Orders made. Legislation: Family Law Act 1975 (Cth) Pt VIIIAB, s 90RD
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32, 46, 69
Cases cited: Colburn & Cleese [2022] FedCFamC1A 147
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Number of paragraphs: 20 Date of hearing: 10 November 2022 Place: Newcastle (via video link) The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 235 of 2022
CSC 103 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR SWINBANK
Appellant
AND: MS STEIN
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
10 November 2022
THE COURT ORDERS THAT:
1.Leave is granted for the appellant to bring an appeal within the next 14 days from the orders made on 14 September 2022 (Suit No. ...), which appeal may be included within any Amended Notice of Appeal filed by the appellant in these proceedings (Suit No. ...) pursuant to Order 2 hereof.
2.The appellant shall file an Amended Notice of Appeal within 14 days hereof, in default of which 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 Swinbank & Stein has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
On 14 September 2022, following a hearing some three months before, a judge of the Federal Circuit and Family Court of Australia (Division 1) declared, pursuant to s 90RD(1) of the Family Law Act 1975 (Cth) (“the Act”), that no de facto relationship ever existed between the parties. The appellant contended it had, but the respondent denied it.
The declaration all but determined the dispute between the parties for substantive financial relief under Pt VIIIAB of the Act, as was comprised within the Initiating Application filed in February 2021 and the Response filed in April 2021. Out of abundant caution, the primary judge made ancillary orders foreshadowing the subsequent dismissal of the proceedings if neither party filed written submissions explaining any further orders for which they contended.
The respondent subsequently filed written submissions applying for costs against the appellant, which application was subsequently dismissed, but the appellant did not file any submissions at all.
Consequently, on 26 September 2022, the primary judge made orders in these terms:
1. The application filed on 5 February, 2021 is dismissed.
2. The response filed on 15 April, 2021 is dismissed.
3. There is no order as to costs.
In effect, therefore, the proceedings were finally resolved by two sets of orders. The first set, made on 14 September 2022, declared the parties had not been in a de facto relationship. The second set, made on 26 September 2022, dismissed the appellant’s substantive claim for property settlement relief.
By Notice of Appeal filed on 24 October 2022, the appellant appealed from the second set of orders, but not from the first set of orders.
There are two problems with the appeal in its present form which, for reasons of fairness, necessitated it being listed to afford the appellant the chance to rectify them.
First, the appeal brought from only the second orders will be futile because, even if it succeeds, no property settlement relief could subsequently be granted to the appellant in the teeth of the undisturbed declaration that the parties were never in a de facto relationship, as the first orders are not presently challenged. The appellant’s underlying application for property settlement relief is predicated upon his assertion that the parties were in a de facto relationship between about 2014 and 2020.
Secondly, the grounds of appeal as presently pleaded are so hopelessly inadequate that they ought be struck out for incompetence. That is not a personal criticism of the appellant, who is now without legal representation, but rather just objective commentary upon the quality of the grounds. The respondent is entitled to know what case she needs to meet in the appeal.
Ground 1 is simply a statement that the appellant seeks a “retrial”.
Ground 2 asserts the primary judge made an error in making the second set of orders, but which the appellant attempts to particularise by referring to the reasons for judgment published to explain the first set of orders, which are not appealed.
Ground 3 simply makes an observation about the content of his Initiating Application filed in February 2021.
Ground 4 (which comprises three separate paragraphs numbered 4, 4(a) and 4(b)) makes an assortment of statements about some aspects of the reasons for judgment published to explain the first set of orders, the nature of some correspondence between he and his solicitors during the pendency of the litigation, and his belief about his solicitors’ incompetent preparation for the first hearing.
Ground 5 is a bare assertion that the appellant has “overwhelming evidence” to prove the existence of the parties’ de facto relationship “for the period 2014-2020”.
As can be seen, while the appellant does contest the dismissal of his application for property settlement relief, his principal grievance is with the anterior declaration that no de facto relationship ever existed between the parties. He therefore needs to appeal from both the first and second orders, which need originates from the primary judge having resolved the parties’ dispute by two sets of orders, explained by two separate written judgments.
However, that presents a problem. The declaration made under s 90RD of the Act was a final judgment from which the appellant needed to appeal if he took issue with it (Colburn & Cleese [2022] FedCFamC1A 147 at [13]–[15]). It was not merely an interlocutory finding which can now be challenged within the appeal already brought from the second orders made dismissing all outstanding applications (Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 482–484 and 494–497). The limitation period for any appeal from the first orders has now expired. No appeal from those orders is competent without leave to bring it out of time.
Given the manner in which the problem has arisen, orders will now be made, first, to grant the appellant leave to bring an appeal from the first set of orders made on 14 September 2022 out of time, and secondly, to compel the appellant to amend the grounds of his appeal from the second orders made on 26 September 2022 so they are recognisable as competent grounds of appeal pleading some form of legal, factual or discretionary error. He may need help from a lawyer, but that is his choice.
Rather than forcing the appellant to file a separate appeal from the first orders, thereby incurring another filing fee, he should be permitted to bring such an appeal within the existing appeal to overcome the prejudice caused by the primary judge’s orders requiring two separate appeals.
In the event of an Amended Notice of Appeal not being filed within 14 days, the appeal will be summarily dismissed due to the incompetency of the appeal in its current form, which power arises from and is vested in a single judge by the provisions of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (ss 32(3)(b), 32(3)(c), 32(5), 46(2) and 69(4)(b)).
Both parties are self-represented so there is no question of costs to consider.
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: 10 November 2022
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