Father Opposes Final Parenting Orders

Oakley & Millar [2022] FedCFamC1A 7 (1 February 2022)

Final parenting orders were made for the mother to have sole parental responsibility.  The 25 grounds are a retinue of complaints about the perceived unfairness of the trial process and the result.  The Court, in resolving this dispute, assessed whether the grounds of appeal as presently pleaded are in satisfactory form.

Facts:

On 2 September 2021, a judge of the Federal Circuit and Family Court of Australia (Division 1) made final parenting orders between the parties in respect of their two children, aged nine and seven years at that time.  

The orders provided for the mother to have sole parental responsibility for the children and for them to live with her, but for the children to neither spend time nor communicate with the father.  By a Notice of Appeal filed on 30 September 2021, the father purports to appeal from the parenting orders allocating parental responsibility, settling the children’s residence, and declaring the absence of interaction between him and the children (Orders 2, 3 and 4); an injunction which precludes contact between him and the children, with attendant procedural orders (Orders 8, 9, 10 and 11); a procedural order discharging the appointment of the ICL on the finalisation of this appeal (Order 12); an order dismissing all extant applications not otherwise covered by the orders (Order 13); and “all the findings in the judgement (sic)”.

The father accepts that the grounds of appeal are, in large measure, a retinue of complaints about the perceived unfairness of the trial process and the outcome, which must be re-pleaded in a form corresponding with recognisable and competent grounds of appeal from a discretionary judgment. 

An order is made requiring him to file an Amended Notice of Appeal within 21 days, in default of which the appeal is summarily dismissed because it has no reasonable prospect of success in its current form.  The father’s Application in an Appeal filed on 7 December 2021 was also listed but the father agreed it should not be heard and determined until after his proper grounds of appeal are settled.  It will be listed for hearing shortly after the Amended Notice of Appeal is due to be filed, but is dismissed if the appeal is summarily dismissed.

Issue:

Whether or not the appeal has reasonable prospect of success.

Applicable law:

Analysis:

The grounds are loquacious, jumbled, argumentative and, in many instances, ungrammatical.  Undoubtedly the husband has grievances he wishes to agitate in the appeal but, like every other litigant, he must do so in accordance with accepted rules.  If the appeal is permitted to progress in its current form, the mother and her lawyers certainly have little chance of identifying and meeting any permissible challenges.

Conclusion:

The Court struck out the grounds of appeal contained within the Notice of Appeal filed on 30 September 2021.  In default of an Amended Notice of Appeal being filed within 21 days:

(a) the appeal is summarily dismissed; and
(b) the Application in an Appeal filed on 7 December 2021 is dismissed.

The Application in an Appeal filed on 7 December 2021 is otherwise listed for hearing before Austin J at 9.30 am on Friday 25 February 2022.