Lewerentz & Warshawsky

[2025] FedCFamC1A 14

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Lewerentz & Warshawsky [2025] FedCFamC1A 14

Appeal from:

Order made 20 December 2024

Appeal number:

NAA 9 of 2025

File number:

NCC 3356 of 2023

Judgment of:

AUSTIN J

Date of judgment:

5 February 2025

Catchwords:

FAMILY LAW – APPEAL – Practice and procedure – Summary dismissal – Where the appellant was invited to show cause why the appeal should not be summarily dismissed – Where the hearing proceeded in the absence of the appellant – Where none of the grounds assert a recognisable ground of appeal – Appeal summarily dismissed.

Legislation:

Family Law Act 1975 (Cth) Pt VII

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32, 46

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13

Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

House v The King (1936) 55 CLR 499; [1936] HCA 40

Number of paragraphs:

19

Date of hearing:

5 February 2025

Place:

Newcastle (via MS Teams)

The Appellant:

Litigant in person (did not participate)

Solicitor Advocate for the Respondent:

Ms Carter

Solicitor for the Respondent:

Umbrella Legal

Counsel for the Independent Children's Lawyer:

Ms Kaiti

Solicitor for the Independent Children's Lawyer:

NLS Law

ORDERS

NAA 9 of 2025
NCC 3356 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR LEWERENTZ

Appellant

AND:

MS WARSHAWSKY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	5 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The appellant’s application for an adjournment is dismissed.

2.The Notice of Appeal filed on 6 January 2025 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 Lewerentz & Warshawsky has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. These reasons explain the summary dismissal of the appeal brought by the father from parenting orders made under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 20 December 2024.

   Background

2. The father and mother have two young children, in respect of whom the mother commenced proceedings under Pt VII of the Act in 2023. The proceedings were heard by the primary judge during 2024, with judgment pronounced on 20 December 2024.

3. In summary, parental responsibility for the children was allocated exclusively to the mother, the children were ordered to live with her, and the relationships between the children and the father were severed. It was ordered that the children neither spend time nor communicate with him and he was restrained from contacting them and the mother.

4. The father appealed from all orders by Notice of Appeal filed on 6 January 2025.

5. The appeal was listed before the Court on 5 February 2025 to afford the father the chance to explain why the appeal should not be summarily dismissed. He did not appear, but the hearing proceeded in his absence, as both the mother and the Independent Children’s Lawyer (“ICL”) sought, with them pressing for the appeal to be summarily dismissed.

   Adjournment application

6. At the commencement of the hearing the ICL informed the Court that, approximately 25 minutes ago, the father telephoned her office to inform her that he was presently in custody, having been arrested in mid-January 2024. He asserted to the ICL that he expects to be released from custody in early March 2025 and asked the ICL to announce to the Court his application for an adjournment of this hearing for a period of six months.

7. The mother informed the Court the father was arrested in mid-January 2025 and is remanded in custody, with bail refused, on charges of breaching a family violence order, which exists for the protection of the mother.

8. Despite the father’s assertion of his impending release from custody in early March 2025, neither the mother nor the ICL were confident about the date of his release. If he is remanded with bail refused, it is difficult to resist the implication that the father is unaware of when the prosecution against him will be finalised and what sentence may eventually be imposed upon him if his guilt is established.

9. For present purposes, I accept the father is remanded in custody and is unable to attend today’s hearing, but the summary dismissal of the appeal seems such an inevitable outcome that I do not intend to visit upon the mother and the ICL the prejudice of an adjournment, let alone an adjournment for the long period proposed by the father. The father’s adjournment application is refused.

10. If in due course the father makes an application pursuant to r 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to vary or set aside the orders made today on account of them being made in his absence, then his application will be duly considered on merit subject to established legal principles. Supposing he could satisfactorily verify the explanation for his failure to appear today, he would still need to persuade that a different decision might be reached on rehearing, allowing for his participation, and no irremediable injustice would thereby be caused to the mother and the ICL (Allesch v Maunz (2000) 203 CLR 172 at 182–183 and 189–191).

    Legal principles

11. Appeals, like any other form of proceeding, may be summarily dismissed if they exhibit no reasonable prospects of success (s 46(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)). The appeal needs neither be hopeless nor bound to fail to lack any reasonable prospects of success (s 46(3)).

12. Even though this appeal lies to the Full Court (s 32(1)(b)), it may be summarily dismissed by a single judge (s 32(3)(b) and s 32(5)).

    Disposition

13. The four grounds of appeal pleaded by the father are in these terms:

    1.The Mother was not honest with the court about her relationship with [named person] and has since removed [named person] from their home and who is now in a fight with [the mother] to retrieve the money he influenced (sic) to invest and borrow during their relationship.

    2.The mother’s lawyer and Judge used my military service / contractor history which is classified under multiple Commonwealth and joint Australia & New Zealand ACT’s back to 1903, under the protection of classified and security sensitive information. As a way to discredit me and to determine that I was not trustworthy. However, my reluctance to divulge Commonwealth military secrets even though my own children futures at risk shows my integrity.

    3.The fact that I was only arrested for the first time in 2023 at the end of our relationship with no history of physical violence, even though I am highly trained […] also proves that I have great restrain under high pressure situations which shows that I am not a risk to our children and am able to cope in any situation.

    4.During [the mother’s] cross examination it was proven that I was the primary carer of our happy kids and she said that the children only have happy memories of their father, even though she wrote I was physically and emotionally violence towards them, seems untruthful.

    (As per the original)

14. As can be seen, none of the grounds is competent because none asserts a recognisable ground of appeal which lies from a discretionary judgment (House v The King (1936) 55 CLR 499 at 504–505). The appealed judgment was discretionary.

15. Ground 1 alleges the mother’s dishonesty and asserts factual developments since the judgment. The father’s belief in the mother’s dishonesty is irrelevant in the face of the primary judge’s unchallenged findings about the veracity accorded to the parties and witnesses (at [10], [15] and [22]). The recent developments which the father asserts concerning the conflict between the mother and her partner, even if true, are irrelevant because they do not appear to make any difference at all to the appealed orders, even if evidence about such developments was to be accepted as further evidence in the appeal (CDJ v VAJ (1998) 197 CLR 172).

16. Similarly, Ground 4 represents the father’s subjective interpretation of the tenor of the mother’s evidence, which evidence he believes to be untruthful, but his honest belief is not capable of substantiating any legal, factual or discretionary error by the primary judge in finding otherwise.

17. Ground 2 alleges impropriety by both the mother’s lawyer and the primary judge, but only the latter could be relevant to the integrity of the judgment. Regardless of the father’s mysterious reference to unidentified Commonwealth legislation, it is difficult to conceive how the primary judge might have improperly admitted evidence at the trial about the father’s military and employment “history”, so no allegation of evidentiary error is likely capable of being established. Once the evidence was lawfully admitted, the primary judge was free to use it.

18. Ground 3 is a bare assertion by the father that he poses no risk of harm to the children, which only represents his disagreement with the contrary findings made by the primary judge, but the ground does not articulate how the strong findings against him were made in error.

19. The appeal has no reasonable prospects of success and is therefore summarily dismissed.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       6 February 2024