Zhihao & Mu
[2024] FedCFamC1A 228
•5 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Zhihao & Mu [2024] FedCFamC1A 228
Appeal from: Order dated 20 June 2024 Appeal number: NAA 284 of 2024 File number: BRC 11845 of 2023 Judgment of: AUSTIN J Date of judgment: 5 December 2024 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the decision of the appeal registrar to reject his Application in an Appeal seeking leave to file an appeal out of time – Where none of the orders the applicant proposes to challenge comprise a judgment from which an appeal validly lies – Where the proposed grounds of appeal are ostensibly bereft of merit – Application dismissed – No application for costs. Legislation: Family Law Act1975 (Cth) Pt VII
Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.01
Cases cited: De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640; [1996] HCA 5
Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91
LK v Director-General, Department of Community Services (2009) 237 CLR 582; [2009] HCA 9
Panayotides & Panayotides (1997) FLC 92-733; [1996] FamCA 135
Sadasivam & Seshan (2019) FLC 93-899; [2019] FamCAFC 76
Whitmore & Whitmore [2022] FedCFamC1A 75
Number of paragraphs: 33 Date of hearing: 5 December 2024 Place: Newcastle (via MS Teams) The Applicant: Litigant in person Solicitor Advocate for the Respondent: Ms Alroe Solicitor for the Respondent: Lander & Rogers Solicitor Advocate for the Independent Children's Lawyer: Ms Walsh Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
NAA 284 of 2024
BRC 11845 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ZHIHAO
Applicant
AND: MS MU
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
5 DECEMBER 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 28 November 2024 is dismissed.
2.The two Responses to an Application in an Appeal filed on 4 December 2024 are 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 Zhihao & Mu has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
These reasons explain the dismissal of an application to review orders made by an appeal registrar (“the registrar”) exercising delegated judicial power within the appellate jurisdiction of the Federal Circuit and Family Court of Australia (Division 1).
Background
The applicant and the respondent are the parents of two adolescent children, the elder of whom is 16 years old and the younger of whom is 12 years old.
The applicant lives in Country B.
The respondent and the children live in Australia, having moved here without the applicant’s knowledge in April 2023.
In May 2023, the respondent began proceedings in Australia seeking orders in respect of the children under Pt VII of the Family Law Act1975 (Cth) (“the Act”). At or about the same time, the applicant initiated parenting proceedings against the respondent in Country B, the status of which parallel proceedings remains unknown.
The Australian proceedings were stayed in July 2023, as other proceedings brought by the Australian Central Authority (“the Central Authority”) under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) seeking orders for the children’s return to Country B were imminent. Those Hague Convention proceedings were commenced by the Central Authority in September 2023, but progression to trial was interrupted for several reasons it is unnecessary to mention. Ultimately, on 14 June 2024, the Central Authority elected to discontinue the Hague Convention proceedings and filed a Notice of Discontinuance.
A week later, on 20 June 2024, the primary judge made these confirmatory orders, with the parties’ consent:
BY CONSENT IT IS ORDERED pursuant to Part 10.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 in accordance with the Minutes of Proposed Consent Orders sealed and attached hereto, marked exhibit “A”, AND IT IS DIRECTED that such Minutes remain upon the Court File.
…
1.The [Central Authority] is granted leave to discontinue the [first instance proceedings].
2.The Application filed by the [Central Authority] on 4 September 2023 be discontinued.
3.The injunctions issued pursuant to paragraphs 1 and 2 of the Order of 15 September 2023 be discharged.
4.The Marshal of the Federal Circuit and Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and officers of the police forces and services of the various States and Territories are directed to take all necessary steps to give effect to this Order.
5.The Commissioner of the Australian Federal Police remove the names of the [respondent] and [the children], from the Family Law Watch List.
6.The Applicant be at liberty to notify the Australian Federal Police of this Order.
7.The appointment of the Independent Children’s Lawyer pursuant to paragraph 9 of the Order of 15 September 2023 be discharged.
8.The following Subpoenas issued be discharged:
(a) Subpoena issued to [Ms C], Social Worker on 20 November 2023;
(b) Subpoena issued to [Ms D] on 20 November 2023;
(c) Subpoena issued to [Ms E] on 20 November 2023;
(d) Subpoena issued to [Dr F] on 20 November 2023; and
(e)Subpoena issued to [Dr G] issued 21 January 2024.
9.[Ms H] of the [Central Authority] or her nominee, be at liberty to release to the [respondent] the passport relating to [the respondent] and the passports relating to the subject children.
The primary judge also dismissed all outstanding applications, but the order was superfluous because there were none.
Some four months later, on 30 October 2024, the applicant filed an Application in an Appeal seeking leave to bring an appeal from those orders out of time. The application was actively resisted by both the respondent and the Independent Children’s Lawyer (“the ICL”). The applicant did not join the Central Authority as a party to the application but, when given notice of it, elected not to participate.
The registrar heard the application on 12 November 2024 and dismissed it the next day.
By an Application in an Appeal filed on 28 November 2024, the applicant seeks review of the registrar’s dismissal order and an extension of time within which to bring his appeal. The respondent and the ICL both oppose the application by Responses filed on 4 December 2024.
Evidence and submissions
The applicant relies upon:
(a)his affidavit filed on 30 October 2024 in support of his application for an extension of time to appeal, which annexes the draft Notice of Appeal he wants to file;
(b)his affidavit filed on 28 November 2024 in support of his review application;
(c)his written submissions filed on 7 November 2024;
(d)his written submissions dated 10 November 2024, though misleadingly entitled “Supplementary Documents for the Applicant”, which were not filed but apparently received by the registrar as an exhibit;
(e)his two sets of supplementary written submissions filed on 12 November 2024; and
(f)his unfiled written submissions dated 5 December 2024.
The respondent relies upon:
(a)her affidavit filed on 7 November 2024; and
(b)her written submissions filed on 11 November 2024 and 4 December 2024.
The ICL relies upon her written submissions filed on 11 November 2024.
No oral submissions made by the parties or the ICL usefully elaborated their written submissions.
Legal principles
The review application necessitates a de novo hearing of the applicant’s application for an extension of time within which to appeal from the orders made by the primary judge on 20 June 2024.
The legal principles governing the determinations of applications to extend time to appeal were stated as follows in Whitmore & Whitmore [2022] FedCFamC1A 75:
17.Countless decisions have addressed the principles which apply to the determination of applications to extend time to appeal. Inevitably, they all lead back to principles enunciated by the High Court of Australia in Gallo v Dawson (1990) 93 ALR 479 and Jackamarra v Krakouer (1998) 195 CLR 516.
18.Essentially, the applicant seeking the extension of time must demonstrate that there is a substantial issue to be raised in the appeal, for otherwise it is pointless granting the extension of time to bring it. That issue is always central to the inquiry, though other considerations then influence the exercise of discretion. Such other considerations are unconfined but include the extent of the delay, the cogency of the reasons offered by the applicant for the delay, whether hardship or prejudice would accrue to the respondent if an extension of time were granted, and the public policy of ensuring that finalised litigation is not unnecessarily re-opened.
Those principles are applied.
Disposition
Two propositions may be accepted in the applicant’s favour.
First, although not a party to the Hague Convention proceedings, as the parent of the subject children he was certainly interested in the outcome of the proceedings and enjoys standing to appeal from any dispositive orders (Panayotides & Panayotides (1997) FLC 92-733).
Secondly, the applicant advances a sound reason for his delay in bringing an appeal from the orders made in June 2024. In his first affidavit, he explained how he requested the Central Authority to appeal from the orders but received no response, which was unsurprising when the Central Authority elected to discontinue the proceedings. However, not being a party to those proceedings, the applicant was unaware he had standing to bring an appeal himself. When alerted to such entitlement, he immediately filed his application for leave to appeal out of time.
However, the principal bulwark faced by the applicant is the incompetence of his proposed appeal. The orders from which he proposes to bring the appeal do not comprise a “judgment” which is amenable to appeal because the subject orders do not determine any legal rights (Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64).
The underlying Hague Convention proceedings were voluntarily discontinued by the Central Authority and were not dismissed by the primary judge. Orders 1 and 2 were made superfluously and merely confirm the Central Authority’s forensic decision. They do not add any imprimatur of judicial authority to the Central Authority’s decision. Following the valid discontinuance of the proceedings, there was nothing else for the Court to dismiss, hence the futility of the additional dismissal order. Without Orders 1 and 2, the underlying proceedings would still stand discontinued. Orders 3 to 9 inclusive simply discharge interlocutory orders which could not have survived the finalisation of the cause of action in any event (r 5.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); Sadasivam & Seshan (2019) FLC 93-899 at [26]).
There is another consideration which blocks the grant of the applicant’s application. The grounds of appeal which the applicant intends to argue are ostensibly bereft of merit. They do not allege any appealable error vitiating the orders made by the primary judge on 20 June 2024.
Proposed Ground 1 simply asserts the orders were made because the elder child had attained 16 years of age. That is an assumption which may or may not be correct, though the Regulations do not cover children who have attained 16 years of age (reg 16(1A)(a)).
Proposed Ground 2 simply asserts the orders were made without the applicant’s consent, which is obviously correct as he was not a party to the Hague Convention proceedings. His consent was unnecessary.
Proposed Grounds 3 and 4 allege the orders were made without considering the cause of the younger child’s “psychological harm” or whether his condition was “real or not”, but evidence in respect of such issues, even if relevant to disposition of the Hague Convention proceedings, could not be considered until trial. There was no trial.
Proposed Ground 5 alleges the orders were made without considering any evidence, which is true because the proceedings were discontinued before trial.
Proposed Ground 6 alleges the orders were made without a fair trial or without considering the best interests of the children, but there was no trial and the best interests of the children were not dispositive of the Hague Convention proceedings. The Hague Convention is concerned with preserving, to the jurisdiction of the habitual residence of the child in a contracting State, the determination of rights of custody and of access, subject to certain prescribed defences which may be raised. Such proceedings are not subject to the principle that the child’s best interests are paramount, but the child’s welfare is properly taken into consideration when exercising discretion as to whether the child is returned (De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 at 648, 658 and 661; LK v Director-General, Department of Community Services (2009) 237 CLR 582 at 594).
The multiple additional grievances set out within the applicant’s second affidavit filed on 28 November 2024, even if deemed to be additional proposed grounds of appeal, do not enhance the prospects of success of the intended appeal. Such complaints are allegations of how the Regulations should have been applied at first instance, but the issue did not arise because the proceedings were discontinued and no determination under the Regulations was required of the primary judge.
Finally, aside from the proposed appeal lacking any reasonable prospect of success, the applicant’s pursuit of it is unnecessary. Once the Hague Convention proceedings were discontinued in June 2024, the stay of the Australian parenting proceedings was lifted and so the applicant is free to participate in those ongoing proceedings under Pt VII of the Act, seeking orders for the children to live with him in Country B.
The review application is dismissed. The registrar’s orders stand.
No costs order was sought by either the respondent or the ICL.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 6 December 2024
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