Ion & Sousa [2025] FedCFamC1A 180 (29 September 2025)

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 Ion & Sousa has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons for judgment relate to a Notice of Appeal filed 14 July 2025 and two subsequent applications filed in appeal proceedings between Mr Ion (the applicant husband) and Ms Sousa (the respondent wife).
2. The matter was listed on the Court's own motion to consider whether or not it should be summarily dismissed. It was deliberately listed on a date following the receipt of the applicant's Summary of Argument so that all matters sought to be raised by the applicant could be considered.
3. The appeal itself lies from the decision of a judge of the Federal Circuit and Family Court of Australia (Division 2) on 16 June 2025. The primary judge dismissed the applicant's Further Amended Application in a Proceedings filed on 23 April 2025 pursuant to Rule 10.27(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules").
4. The uncontroversial factual circumstance is that the applicant was not at court to prosecute his application.
5. In addition, the applicant had been ordered to file either an affidavit or submissions setting out the basis for his interlocutory relief by 28 May 2025 and while he asserts that he complied, there is a dispute about whether the submissions he filed were in fact served.
6. Some limited background is required. The applicant, who is appearing for himself in these proceedings, seeks property and parenting orders on a final basis. The respondent, who was legally represented before the primary judge, also seeks property and parenting orders. The reasons of the primary judge record at [7]:

In the event of the husband's non-appearance, the wife sought orders that the husband's two applications in a proceeding, previously identified, be struck out. Counsel for the wife relied on Rule 10.27(1)(a) of the Federal Circuit and Family Court of Australia Family Law Rules 2021 (Cth) (the Rules). The wife resisted any suggestion that the husband should be allowed to participate electronically. She submitted that these interim applications merely served to obfuscate the "real issues in relation to this matter" and prejudiced the possible negotiated settlement of the proceeding in relation to what was a small property pool. The wife's counsel noted that an application of this kind by the husband had previously been struck out by a different judge of this Court, following which the husband did not take the opportunity to remedy the application before filing it again.

1. The primary relief sought by the applicant when the matter was before the primary judge was a certificate pursuant to the provisions of s 128 of the Evidence Act 1995 (Cth) designed to prevent any affidavit filed on his behalf or documents discovered by him from being used in criminal or civil penalty proceedings against him.
2. Section 128(1) of the Evidence Act 1995 (Cth) provides:

(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:

(a) has committed an offence against or arising under an Australian law or a law of a foreign country; or

(b) is liable to a civil penalty.

1. The primary judge's reasons for judgment at [7] record that counsel for the respondent informed the Court that a previous application of the same nature had been struck out.
2. This Court has consistently observed that a witness will only be able to apply for a certificate in respect of evidence in chief if he or she is compelled to give that evidence: Field & Kingston (2018) 58 Fam LR 429. The mere fact that it would be tactically or forensically advantageous is inadequate at [24].
3. The primary judge dismissed the applicant's applications which resulted in the filing of a Notice of Appeal. The subsequently filed Amended Notice of Appeal contains 11 purported grounds:

Ground 1- Judicial error in reasons and factual findings

Ground 2 - Procedural Fairness Error: Reliance on False Representation and Lack of Impartiality

Ground 3 - Procedural Fairness and Denial of Hearing:

Ground 4 - Refusal of Adjournment/ Remote Participation

Ground 5 - Section 128 Error

Ground 6 - Acceptance of Late Submissions

Ground 7 - Scope Error

Ground 8 - Unequal Treatment of Attendance

Ground 9 - Fraud

Ground 10 - Disclosure Error

Ground 11 - Additional Evidence

1. The first Application in an Appeal, filed 11 August 2025, sought to adduce evidence which was not formally before the primary judge.
2. The second application in an appeal, filed 25 August 2025, sought procedural directions both generally and consequent upon acceptance of the material sought to be adduced.
3. On 12 September 2025 the applicant and respondent were given notice that on the date which had been allocated to hear the applicant's two Applications in an Appeal, the Court would first consider, of its own motion, whether or not the appeal should be summarily dismissed.
4. The applicant filed written submissions ahead of the hearing. In those written submissions he opposed summary dismissal. He did not identify why the appeal had reasonable grounds.
5. The applicant was mistaken in his assumption, articulated in his written submissions dated 16 September 2025, that the Court was considering summary dismissal under Rule 13.45(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") because of a failure, on his part, to comply with an order or Rule. In which case, as he identified, the Rules provide that 14 days notice of the listing is required.
6. It is not contended that the applicant has failed to comply with a procedural requirement. The Federal Circuit and Family Court of Australia 2021 Act (Cth) ("the FCFCOA Act") provides for the summary dismissal of an appeal if it has no reasonable prospect of success, even if it is not hopeless or bound to fail (ss 46(1) and 46(3)).
7. I have considered whether, notwithstanding the fact that the Rule to which the applicant referred is not relevant to the application which I am considering, the question of whether the applicant has had sufficient notice of the proposed summary dismissal hearing and whether, as he asserts, any questions of procedural fairness arise. When the applicant was asked what would be undertaken if the Court were to adjourn, he said he would prosecute his Applications in the Appeal and may amend his Notice of Appeal and his Summary of Argument.
8. I have considered whether the applicant has had a sufficient opportunity to be heard about the summary dismissal application. I conclude that he has because:

(a) He has had the opportunity to file an Amended Notice of Appeal and did not identify what further amendment(s) would be required;

(b) He has very recently (and after the matter was listed for summary dismissal) filed his Summary of Argument in the appeal proper, permitting me to consider his arguments as to the merits of his proposed appeal;

(c) The proposed appeal has a number of significant challenges (discussed below) which could not be addressed by further time.

1. I need to weigh a number of different considerations in determining whether to proceed, including the interests of the respondent in timely disposition of the proceedings, the interests of the Court in orderly case management of all cases before it, and the overarching principles contained in s 67 of the FCFCOA Act. Those factors persuade me that it is appropriate to consider the Court's motion for summary dismissal over the objection of the applicant.
2. It having been established that the matter is listed for the applicant to show cause as to why the appeal should not be summarily dismissed, the question is therefore: does the appeal have reasonable prospects of success? Upon consideration of the following matters, the appeal does not have any reasonable prospect of success and so should be summarily dismissed.
3. Grounds 2 and 3 assert a denial of procedural fairness arising from the primary judge dealing with the matter in the absence of the applicant and in reliance upon submissions made by the respondent. Given the matters discussed below, no substantial unfairness is demonstrated.
4. Ground 1 contends that as the applicant had in fact filed his submissions, the primary judge was in error in concluding he was in default in that regard. The issue which the reasons raise is whether the respondent had received the submissions [9]. This ground is ill conceived.
5. Ground 4 is about refusal of an adjournment. No appeal lies from a decision not to adjourn a hearing: s 26(2)(b)(ii) of the FCFCOA Act.
6. The primary judge, cognisant of the applicant's desire for an adjournment, proceeded to deal with the matter in his absence and dismissed his application.
7. Grounds 5 - 8, 10, and 11 are not competent grounds of appeal.
8. Ground 9 is scandalous and absent evidence.
9. Even if the appeal were competent, the decision was interlocutory and the applicant requires leave to appeal which he has not sought.
10. Even if the applicant were to amend to seek leave, leave would be refused. Any application for leave to appeal Order 1 has no reasonable prospect of success on account of the test in Medlow & Medlow (2016) FLC 93-692 at [57] not being met.
11. In any event, the proper remedy in respect of applications determined in the absence of a party is not appeal: Cooke and Morton [2018] FamCAFC 9; (2018) FLC 93-820.
12. Plagued with all these difficulties, the applicant was informed that summary dismissal was contemplated on the Court's own motion. Nothing which was advanced by the applicant in writing or orally persuades me that I should take a different course. The Amended Notice of Appeal filed 11 September 2025 is therefore summarily dismissed.

1. Neither party identified any legal costs incurred in respect of the appeal proceedings and no costs order will be made.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie.