Parties Dispute Orders Regarding De Facto Relationship
Swinbank & Stein [2022] FedCFamC1A 182 (10 November 2022)
An appeal was listed to afford the self-represented appellant the opportunity to rectify his incompetent grounds of appeal. The Court, in determining whether or not the appeal should be granted, assessed whether it challenges an earlier declaration that the parties were never in a de facto relationship.
Facts
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. 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."
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.
Issue
Whether or not the appeal should be granted.
Applicable law
Analysis
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. 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.
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.
Conclusion
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. The appellant shall file an Amended Notice of Appeal within 14 days hereof, in default of which the appeal is dismissed.
