Vang & Chung (No 4)
[2024] FedCFamC1F 390
•6 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vang & Chung (No 4) [2024] FedCFamC1F 390
File number: SYC 1433 of 2020 Judgment of: HARPER J Date of judgment: 6 June 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application in a Proceeding – Where the wife seeks leave to file an Application in a Proceeding – Where formal application is required from de wife – Where appeal is in relation to routine procedural orders – Where appeal has no reasonable prospects of success. Legislation: Family Law Act 1975 (Cth) Pt VIII
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 46, 67, 69
Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) r 1.31 and r 5.13
Cases cited: Darley (No 2) [2023] FedCFamC1A 112
Vang & Chung (No 3) [2024] FedCFamC1F 101
Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: Determined on the papers in chambers The Applicant: Litigant in person Solicitor for the First Respondent: Broun Abrahams Burreket Solicitor for the Second Respondent: Did not participate ORDERS
SYC 1433 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VANG
Applicant
AND: MR CHUNG
First Respondent
MR D
Second Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
6 JUNE 2024
THE COURT ORDERS THAT:
1.Leave be refused to bring the Application in a Proceeding filed by the Applicant Wife on 8 April 2024.
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 Vang & Chung has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
These are property proceedings under Pt VIII of the Family Law Act 1975 (Cth) between the applicant wife, Ms Vang (“the wife”), the first respondent husband, Mr Chung (“the husband”), and the second respondent who is the father of the husband, Mr D.
Much of the relevant background is set out in my earlier decision in Vang & Chung (No 3) [2024] FedCFamC1F 101 (“Vang (No 3)”), delivered on 28 February 2024. It is unnecessary to repeat the background for the purposes of this judgment. Vang (No 3) dismissed the wife’s Application in a Proceeding seeking leave to institute spouse maintenance proceedings out of time, an interim property adjustment and litigation funding. The proceedings were stood over to 4 March 2024 for Interim Defended Hearing.
On 15 September 2023 a Senior Judicial Registrar of this Court made an order that prior to the listing of any further interim applications, the wife is required to seek leave of the Court in accordance with the Family Law Case Management Central Practice Direction.
The wife filed a Notice of Appeal from this decision on 26 March 2024 and an amended Notice of Appeal on 28 May 2024.
On 4 March 2024 I made, relevantly, the following procedural orders:
2. Orders be made in accordance with Exhibit “A” as follows:
(1) …
(2) Within 28 days of the date of these orders, the Applicant Wife (“the wife”) is to provide the further and better particulars requested in the letter from the Second Respondent dated 21 February 2024.
(3) By no later than the close of Registry filing on 13 May 2024, the wife is to file and serve any Amended Initiating Application setting out the precise orders sought.
(4) By no later than the close of Registry filing on 20 May 2024, the Respondent Husband (“the husband”) and the Second Respondent file and serve:
(a) Points of defence to the wife’s Points of Claim; and
(b) Response to any Amended Initiating Application filed and served by the wife.
The wife filed a Notice of Appeal from these orders on 27 March 2024. As part of the relief sought on appeal, the wife seeks an order that Orders 2(2), (3), and (4) be discharged. She filed an amended Notice of Appeal on 28 May 2024, which repeated the same relief.
On 10 April 2024, the wife filed an Application in a Proceeding seeking leave to bring the application for a stay and a stay of Orders 2(2), (3), and (4). This judgment determines that application for leave. Leave is sought because the wife had exhausted the number of permitted interlocutory applications prescribed in the Central Practice Direction by 13 September 2023, and on that date the Senior Judicial Registrar ordered that leave was required for any further listing of interim applications.
For the reasons which follow I have determined that, pursuant to r 5.13(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) (“the Rules”), it is appropriate to decide the application for leave in the absence of the parties and dispense with the requirements of r 5.13(a) and r 5.15 pursuant to r 1.31 and s 69(2)(f) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) in the interests of justice.
The question of leave is answered in part by considering the wife’s prospects of success in her proposed appeal. In Darley (No 2) [2023] FedCFamC1A 112 at [16]–[17] the Full Court said:
16. Appeals only lie from “judgments” (s 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)), which are “operative judicial acts” resolving the entire justiciable dispute or at least determining the parties’ rights in some more limited way (Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64).
17.Judgments do not include rulings on points of law, evidence or procedure which incidentally arise during the proceedings when such rulings are not decisive of legal rights (Commonwealth v Mullane (1961) 106 CLR 166 at 169; Yule v Junek (1978) 139 CLR 1 at 14, 18, 21 and 26).
Orders 2(2), (3), and (4) are routine procedural orders. They do not determine any rights of the parties and cannot constitute a judgment.
Section 46 of the FCFCOA Act empowers the Court to give summary judgment where the Court is satisfied that the prosecuting party has no reasonable prospect of success. I am satisfied that the wife’s appeal from those orders would have no reasonable prospect of success.
The parties and the Court have a duty to promote the overarching purpose set forth in s 67 of the FCFCOA Act to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible. The wife has already filed in excess of 10 interlocutory applications in these proceedings.
Taking account of those matters and the lack of any prospect of success, it is not in the interests of justice or consistent with the overarching purpose to require, or put any party to the expense of, an oral hearing of the wife’s application. For the same reason leave should be refused, and because even if leave was granted no basis for a stay has been demonstrated.
Leave will be refused to bring the application and it will be dismissed.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 6 June 2024
6
3