Vrabec & Vrabec

[2024] FedCFamC1A 177

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Vrabec & Vrabec [2024] FedCFamC1A 177

Appeal from:

Order dated 22 August 2024

Appeal number:

NAA 238 of 2024

File number:

MLC 1066 of 2018

Judgment of:

AUSTIN J

Date of judgment:

8 October 2024

Catchwords:

FAMILY LAW – APPEAL – Practice and procedure – Show cause – Where the appellant was invited to show cause why the appeal should not be summarily dismissed – Where the appellant appeals from final parenting orders – Where the appealed orders were made with his consent – Where the appellant alleges his consent to the appealed orders was not properly informed – Where the appellant is bound by the manner in which his lawyers conducted the proceeding for him – Where the grounds of appeal lack reasonable prospects of success – Appeal summarily dismissed.

Legislation:

Evidence Act 1995 (Cth) s 122

Family Law Act 1975 (Cth) Pt VII

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46

Cases cited:

Allan & Ors & Allan & Ors (2014) FLC 93-606; [2014] FamCAFC 162

Gilbert v Estate of Gilbert (1990) FLC 92-125; [1989] FamCA 95

Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27

Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Number of paragraphs:

14

Date of hearing:

8 October 2024

Place:

Newcastle (via Microsoft Teams)

The Appellant:

Litigant in person

Solicitor Advocate for the Respondent:

Ms Hegarty

Counsel for the Respondent:

Victoria Legal Aid Melbourne

ORDERS

NAA 238 of 2024
MLC 1066 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR VRABEC

Appellant

AND:

MS VRABEC

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	8 OCTOBER 2024

THE COURT ORDERS THAT:

1.The Notice of Appeal filed on 16 September 2024 is summarily 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 Vrabec & Vrabec has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. On 22 August 2024, a judge of the Federal Circuit and Family Court of Australia (Division 2) made orders to finally determine the cause of action between the parties in respect of their only child under Pt VII of the Family Law Act 1975 (Cth) (“the Act”). Relevantly, the orders made provision for the mother to have sole parental responsibility for the child, for the child to live with her, and for the child to spend professionally supervised time with the father, but only if the mother consents.

2. The orders were made with the parties’ consent, when both they and the Independent Children’s Lawyer (“the ICL”) were represented by counsel.

3. Notwithstanding the father’s consent to the orders, he filed an appeal on 16 September 2024. He was then promptly sent written notice informing him the appeal was listed before the Court on 8 October 2024 to afford him the chance to explain why it should not be summarily dismissed.

4. An appeal may be summarily dismissed if it has no reasonable prospect of success (s 46(2) and s 46(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)) and, having given the father the opportunity to be heard on the issue, this appeal is summarily dismissed for absence of reasonable prospects of success. The following reasons explain why.

5. Orders made with the parties’ consent may be appealed, though the nature of such an appeal is confined to grounds which impeach the anterior agreement reached between the parties, such as fraud or mistake for example, or which vitiate the orders for the want of jurisdiction or power (Harvey v Phillips (1956) 95 CLR 235 at 235–244; Allan & Ors & Allan & Ors (2014) FLC 93-606 at [59]–[65]; Gilbert v Estate of Gilbert (1990) FLC 92-125 at 77,839).

6. Save for one aspect of Ground 1 which implies the father’s consent to the orders was not authentic, none of the grounds of appeal can be characterised within those narrow confines.

7. In fact, none of the other grounds are competent grounds of appeal at all. Without reciting the grounds verbatim, they simply allege that:

   (a)the evidence “presented” by the father was “not adequately considered” (Ground 1) – but none of the evidence adduced by either party or the ICL was considered at all, other than for the limited purpose of the primary judge being satisfied the proposed orders were being made in the child’s best interests.

   (b)statements made and documents produced by the father during an anterior mediation were “misconstrued or used out of context” (Grounds 1, 2, 3, 4, 5 and 8) – however the primary judge could not have been privy to any statements or documents confidentially disclosed by either party within a mediation, unless they somehow voluntarily surrendered such confidentiality when inviting the primary judge to make the proposed orders with their consent, but even in that event the primary judge was only interested in the parties’ consent to the proposed orders and their mutual acceptance the orders were being made in the child’s best interests. His Honour would have no ulterior interest in the concessions made by the parties in a prior mediation.

   (c)neither the appealed orders, nor the former interim orders dated 21 May 2024, made any provision for the father to attend “programs or sessions” (Ground 7) – which is true, but it was not the primary judge’s function to make mandatory injunctions or orders compelling the father to attend educative programs (Oberlin & Infeld (2021) FLC 94-017 at [45]–[52]). If the father wants to do so, he is free to do so. The orders envisage he will continue to accept psychological support (Orders 5 and 6).

   (d)the appealed orders ignore the father’s application for certain orders set out within his Amended Initiating Application filed on 13 August 2024 (referred to in the ground as being dated 8 August 2024) (Ground 8) – but that is not true because, with the parties’ consent, the primary judge dismissed all outstanding applications for any orders other than those already made (Order 17).

8. Returning then to Ground 1, it alleges in part:

   …the final version of the agreement/draft order was not read to me by the interpreter, leaving me without full comprehension of the outcome at the time.

9. Evidently, the father is alleging his consent to the appealed orders was not properly informed, about which two observations may be made.

10. First, the Notice of Appeal was prepared by the father without legal assistance using the English language and its contents show no sign of him being hampered by unfamiliarity with the English language, which implies his complaint of not fully understanding the appealed orders would be extremely difficult to sustain in the appeal. The Notice of Appeal does not indicate any involvement of an interpreter in its preparation. At this hearing, in which the applicant was assisted by an interpreter, he admitted he read the orders several days after they were made and did not need an interpreter for that purpose. In any event, the mother’s lawyer confirmed being present at the hearing before the primary judge and she asserted the transcript would prove the father’s counsel told his Honour that an interpreter read the consent orders to the father before he signed them that day.

11. Secondly, the father was represented by counsel when the appealed orders were made and he is bound by the manner in which his lawyers conducted the proceeding for him, including by them affirming his consent to the orders. The adversarial judicial system, both criminal and civil, operates upon the assumption that litigants are bound by the conduct of their legal representatives (TKWJ v The Queen (2002) 212 CLR 124 at [8] and [74]), which assumption is only relieved in the rare circumstances where such representative conduct is proven to have caused a miscarriage of justice. Here, regardless of whether an interpreter read the proposed orders to the father beforehand, he admitted he signed them and his counsel represented to the primary judge that he consented to them. That representation of consent was either true or false. If true, the ground of appeal is baseless. If false, the father’s grievance is really with his counsel’s misrepresentation rather than with him having been deprived of an interpretation of the proposed orders in his preferred language.

12. To have any hope of making good on this ground by demonstrating a miscarriage of justice, the father would need to successfully apply to adduce further evidence in the appeal to prove his former lawyers either negligently signified his consent to the primary judge without his instructions to do so or deliberately misrepresented his contrary instructions. Such evidence could only conceivably be given by him or them. If the father gave such evidence, he would then forfeit the confidentiality of their communications (s 122(2) and s 122(3) of the Evidence Act 1995 (Cth)), permitting the lawyers to give rebuttal evidence as witnesses for the mother, as it is highly improbable they would admit having acted in either deliberate or negligent breach of professional duties.

13. When alerted to those repercussions and the prospect of him also having to give security for the costs which the mother would both incur by having to defend the appeal on such an unlikely premise, the father’s ardour for the appellate contest seemed to wane. He professed his penury and inability to meet such costs, so compelling him to pay security costs as a way of keeping open his option to press the appeal on that solitary ground would not help. The ground lacks reasonable prospects of success. Any complaint the father may have about his lawyers can be ventilated elsewhere.

14. The appeal is dismissed.

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:       8 October 2024