Romagna & Romagna

[2024] FedCFamC1A 212

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Romagna & Romagna [2024] FedCFamC1A 212

Appeal from:	Order dated 17 October 2024
Appeal number:	NAA 271 of 2024
File number:	PTW 7059 of 2018
Judgment of:	ALDRIDGE J
Date of judgment:	11 November 2024
Catchwords:	FAMILY LAW – APPEAL – Practice and procedure – Summary dismissal – Where the applicant appeals from enforcement orders – Where the grounds of appeal relate to the final property orders rather than the proposed appeal – Where the appeal has no reasonable prospects of success – Appeal dismissed.
Legislation:	Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46
Cases cited:	Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Number of paragraphs:	13
Date of hearing:	11 November 2024
Place:	Sydney (via video link)
The Applicant:	Self-represented litigant
The First Respondent:	Self-represented litigant
Solicitor for the Second Respondents:	Lavan

ORDERS

NAA 271 of 2024
PTW 7059 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS ROMAGNA

Applicant

AND:

MR ROMAGNA

First Respondent

MR FYODOROV & MR RUTHERFORD

Second Respondents

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	11 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The appeal is 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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Romagna & Romagna has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

ALDRIDGE J:

1. An appeal against orders made by a magistrate in the Magistrates Court of Western Australia on 17 October 2024 has been listed so that the applicant, Ms Romagna, can show cause why the appeal ought not be summarily dismissed.

2. On 17 October 2024, the magistrate issued a warrant for possession of a property in which the applicant is currently living. The appeal is against that order and associated orders.

3. The grounds of appeal relied on are as follows:

   1.Orders Made in Absence: The orders were made in my absence, and I was not given a fair opportunity to present my case. This constitutes a denial of natural justice and procedural fairness.

   2.Family Domestic Violence: The court failed to adequately consider the impact of family domestic violence on my situation. The presence of domestic violence significantly affects the circumstances and should have been taken into account in the decision-making process.

   3.Respondent Committing Bankruptcy Fraud: The respondent has committed bankruptcy fraud, which was not considered by the court. This fraudulent activity has a direct impact on the fairness and integrity of the proceedings and the resulting orders.

   4.Miscarriage of Justice: There  has been a substantial miscarriage of justice as I went undefended. I was not provided with the opportunity to adequately defend myself, which has resulted in an unfair and unjust outcome.

   (As per original)

   BACKGROUND

4. In order to understand the appeal, it is necessary to give a little bit of history.

5. A property settlement hearing was conducted on 27 August 2024. The parties were the present applicant, Mr Romagna (the first respondent), and the trustees in bankruptcy of the first respondent’s estate.

6. The applicant did not appear at the hearing and on 4 September 2024, the Court made final property settlement orders. One of those orders appointed the trustees in bankruptcy as the trustees for the sale of the property at Suburb C.

7. The applicant sought to appeal against those orders but received advice, correctly, that the appropriate course of action was to apply to set aside orders made in the applicant’s absence. The applicant filed such an application on 18 September 2024. It was dismissed by the Court on 27 September 2024. There has been no appeal against that order. Thus the orders made on 4 September 2024 for the sale of the property and the requirement of the applicant to give vacant possession of the property remain in force and unchallenged.

   GROUNDS OF APPEAL

8. Turning then to the grounds of appeal. It is necessary for an appeal to succeed that there be an error of law or fact that materially affects the orders that were made. The purpose of a ground of appeal is to identify, with precision, those errors.

9. The mere fact an order is made in the absence of a person is not an error per se. The principles of procedural fairness require that parties be given notice of applications, not that they turn up. In any event, the transcript of the proceedings before the magistrate on 17 October 2024 reveal that not only did the applicant send a letter to the Court seeking an adjournment, thereby indicating she was made aware of the proceedings, but she took part in the proceedings by telephone and made an oral application for an adjournment that was refused.

10. Before me this morning, the applicant explained that her real complaint was with the orders made on 4 September 2024 because she did not have the chance to hand up the evidence that she wished to but would do so on a retrial. Her main aim therefore is to obtain a retrial of the property settlement proceedings. In the absence of a successful appeal against the orders made on 27 September and subsequent success on that application if the appeal was allowed, that simply is not going to occur.

11. The other three matters referred to in the grounds of appeal were described by the magistrate as being historical in that they had been raised by the applicant generally over a number of occasions and the magistrate found, in any event, that they were not persuasive of an adjournment. It is difficult to see any link between them and the proposed appeal. They do not identify an error in the orders the subject of the appeal.

12. Proceedings including appeals may be summarily dismissed under s 46 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) where the Court is satisfied that the proceedings have no reasonable prospect of success. To be satisfied of that, the Court need not be satisfied the appeal is hopeless or bound to fail. However, for the reasons that I have given, the appeal is entirely misconceived. It is really a complaint about the orders made on 4 September 2024.

13. As the appeal has no reasonable prospects of succeeding, there is no prospect of there being a grant of leave to appeal, which is required in this case, as the first limb of the test set out in Medlow& Medlow (2016) FLC 93-692 will not be met. Accordingly, the appeal is dismissed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Aldridge.

Associate:

Dated:       12 November 2024