Daalman & Daalman
[2025] FedCFamC1A 33
•4 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Daalman & Daalman [2025] FedCFamC1A 33
Appeal from: Daalman & Daalman [2024] FedCFamC2F 1636 Appeal number(s): NAA 292 of 2024 File number(s): PAC 1037 of 2024 Judgment of: RIETHMULLER J Date of judgment: 4 March 2025 Catchwords: FAMILY LAW – APPEAL – EX-TEMPORE – Leave to appeal – Practice and procedure – Where orders the subject of appeal were superseded by later consent orders – Where appellant failed to attend hearing before primary judge – Where the review application was dismissed by the primary judge – Where the appeal was listed to hear submissions regarding utility – Where appellant did not exhaust all existing remedies available at first instance under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Leave to appeal refused for futility – Appeal dismissed with costs. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28(3)(e)(i)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02(1)(a)
Cases cited: Beale & Harvie [2023] FedCFamC1A 181
Fierro & Fierro (No 8) [2023] FedCFamC1F 336
Hall v Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36
Hopkins & Shorley [2024] FedCFamC1A 221
Lorde & Chu [2014] FamCAFC 228
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Nellie & Nellie [2024] FedCFamC1A 171
Re Darley (No 2) (2023) 379 FLR 234; [2023] FedCFamC1A 112
Saha & Lahiri (No 3) (2023) FLC 94-158; [2023] FedCFamC1A 144
Singam & Moffrey (2015) FLC 93-641; [2015] FamCAFC 42
Number of paragraphs: 22 Date of hearing: 4 March 2025 Place: Parramatta Counsel for the Appellant: Ms Daalman (Litigant in person) Counsel for the Respondent: Ms Conte-Mills Solicitor for the Respondent: Raihani Legal ORDERS
NAA 292 of 2024
PAC 1037 of 2024FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS DAALMAN
Appellant
AND: MR DAALMAN
Respondent
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
4 MARCH 2025
THE COURT ORDERS THAT:
1.Leave to appeal is refused.
2.Appeal NAA 292 of 2024 is dismissed.
3.The appellant pay the respondent’s costs in the sum of $7,000.
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 Daalman & Daalman has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
RIETHMULLER J:
The appellant’s Amended Notice of Appeal filed 5 February 2025 seeks to appeal against orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) in her absence on 31 October 2024 which dismissed her Application for Review of a registrar’s decision.
BACKGROUND
The proceedings concern property settlement applications following a marriage of 30 years. The parties have a matrimonial home at Suburb B in which the appellant continues to live. The parties also have a property at Suburb C.
On 14 August 2024, a Senior Judicial Registrar made orders to the following effect:
[Suburb C] Property
(1)The parties forthwith do all things and sign all documents necessary to cause the property at [Suburb C] to be sold by public auction upon the following terms:
(a)agents together with their contact details and commission information and within a further 7 days the Wife is select one (1) to be the listing agent (“the agent”);
(b)the conveyancer shall be the Husband’s solicitor…;
(c)the reserve price shall be $1,200,000 unless otherwise agreed between the parties; and
(d)in the event the property does not sell at auction, the property shall be resubmitted for sale by public auction at three (3) monthly intervals from the last public auction at a reserve price of 90% of the previous auction reserve price or with such reductions as may be agreed upon between the parties.
(2)Upon the completion of the sale of the [Suburb C] Property, the proceeds of sale shall be applied as follows:
(a)Payment of agent's commission and advertising expenses and legal expenses of the sale;
(b) Discharge of the mortgage on the [Suburb C] Property;
(c) Subject to Order 10, an interim property distribution to each of the Applicant and Respondent in the sum of $100,000 each; and
(d)The balance to be held in a controlled monies account in the joint names of the parties by the Husband’s solicitor, pending further order or agreement between the parties.
On 10 September 2024, the appellant filed an Application for Review of Orders 1(a)–(c) and 2(c)–(d) of the 14 August 2024 orders, which provide:
1. a.the wife should also be given the opportunity to present 3 agents and both the wife and husband agree on one.
b. It has to be a solicitor and not a coveyancer and also both parties have to agree on one
c.To be determined by the leading agent with the suggested auction marketing appraisal
2 c.No interim distribution as applicant owes respondent a great deal of money………
d Monies to be held in trust account until final orders are issued. Mortgage arrears and outgoings to be paid only.....
(As per the original)
On 15 October 2024, the parties entered into consent orders varying Orders 1(a)–(b) of the 14 August 2024 orders, to provide as follows:
That Order 1a and 1b of Orders made 14 August 2024 be amended as follows:
1.The parties forthwith do all things and sign all documents necessary to cause the property [Suburb C] to be sold by public auction upon the following terms:
a)the Wife shall nominate to the Husband, in writing, three (3) local real estate agents together with their contact details and commission information and within a further 7 days the Husband is to select one (1) to be the listing agent (“the agent”);
b)the Wife shall nominate to the Husband, in writing, three (3) registered conveyancers and within a further 7 days the Husband is to select one (1) to be appointed as the conveyancer.
AND IT IS NOTED THAT ALL OTHER ORDERS MADE ON 14 AUGUST 2024 REMAIN IN OPERATION.
(Emphasis in original)
The application to review the orders made by the Senior Judicial Registrar on 14 August 2024 was heard by the primary judge on 31 October 2024. The application to review was dismissed as the appellant failed to appear in person or by audio-visual link. The primary judge noted at [8]–[9]:
The Application for Review was listed before me for hearing at 9.00 am on 31 October 2024. There was no appearance by the Applicant when the matter was called at 9.10 am and, I was told, there was no indication on Microsoft Teams that the Applicant was waiting to be admitted to the hearing. I was informed by Counsel for the Respondent Husband that attempts had been made to telephone the Applicant, without success.
I stood the matter in the list briefly, and when I ultimately heard it at 9.15 am there was, again, no appearance by the Applicant – nor was there any appearance by her at any time before the matter was completed at 9.27 am.
The orders of 15 October 2024 superseded orders 1(a)–(b) of the orders of 14 August 2024 (the subject of the appeal), which has, in effect, rendered nugatory the argument with respect to those orders. There is no utility in considering the merit of the appellant’s arguments in relation to those issues since the challenge is to superseded orders that no longer have effect.
LEAVE TO APPEAL
The orders of 31 October 2024 are interlocutory because they do not “finally determine the rights of the parties in a principal cause pending between them” (Hall v Nominal Defendant (1966) 117 CLR 423 at 443). Leave to appeal is required to appeal from an interlocutory order: see s 28(3)(e)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and reg 4.02(1)(a) of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth).
The Full Court of the Family Court of Australia in Medlow & Medlow (2016) FLC 93-692 (“Medlow”) (at [57]) set out the principles which apply to an application in an appeal, stating that leave will only be granted in circumstances where:
(a)The decision of the primary judge was “attended by sufficient” doubt to warrant its reconsideration; and
(b)If leave were refused, a “substantial injustice” would result, supposing the original decision to be wrong.
Whilst there is no formal application for leave to appeal, I proceed on the basis of an oral application by the appellant for leave made before me at the hearing of the appeal, as the appellant was unrepresented.
There can be no doubt that the primary judge was correct to dismiss the review application when the appellant failed to appear.
The appellant alludes to technical issues in her Amended Notice of Appeal filed 5 February 2025 where she says “I was present and have provided all the documentation regarding this and the proof of screenshots. The costs should be dismissed.” A lengthier explanation of the reason for failing to appear was set out in the original Notice of Appeal but deleted in the Amended Notice of Appeal. However, there is no affidavit evidence filed in the appeal as to this claim (nor any application to lead evidence on the appeal).
The electronic link was set up by the court and obviously operating as it is clear that from the transcript of proceedings that counsel for the respondent appeared by audio-visual link.
Where a party fails to appear there is a remedy: an application may be made under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which provides:
10.13 Varying or setting aside orders
(1) The court may at any time vary or set aside an order, if:
(a) it was made in the absence of a party…
The appellant has not pursued the remedy available under r 10.13. As the explanation for failing to appear is likely to involve evidence that may be disputed, it is appropriately brought under r 10.13 and not pursued as an appeal.
As was said in Lorde & Chu [2014] FamCAFC 228:
[36]… it has long been established in this jurisdiction that where a party seeks to set aside orders made in his or her absence, the proper course is for that party to apply at first instance for a rehearing rather than seek to have the matter dealt with by a way of an appeal (Wilkes and Wilkes (1981) FLC 91–060). Moreover, Rule 16.05 of the Federal Circuit Court Rules 2011 (Cth) [sic] provides for a rehearing at first instance in such circumstances…
Litigants should generally be required to adopt litigation strategies that are “more appropriate, and far less expensive” (Darley (No 2) (2023) 379 FLR 234 at [55]). This principle has been restated numerous times in recent authorities: see Singam & Moffrey (2015) FLC 93-641; Fierro & Fierro [2023] FedCFamC1F 336; Saha & Lahiri (No 3) (2023) FLC 94-158; Beale & Harvie [2023] FedCFamC1A 181; Hopkins & Shorley [2024] FedCFamC1A 221; Nellie & Nellie [2024] FedCFamC1A 171.
The availability of this remedy shows that there is no “substantial injustice” if leave to appeal is refused as a more appropriate remedy is available than an appeal.
The only issue that remains is whether there should be an interim distribution to each party of $100,000 from the sale proceeds of a property (now sold for $1.12 million) and subject to a mortgage of around $584,000 (Appellant’s Financial Statement filed 24 June 2024) (now said to be around $600,000). The appellant’s case, as set out in her Amended Response filed 12 August 2024 is that she receive 70% of the net proceeds of the sale and the respondent 30%. These orders could be met even if the respondent receives an interim payment of $100,000 of the net proceeds from the sale of the Suburb C property. At the hearing today, the appellant said that she wanted property settlement orders that would see the respondent receive nothing from the sale of the Suburb C property, due to his dealings with money in their bank accounts. However, she has not yet amended her Response to seek orders reflecting this claim.
Whilst there is no material to show the primary judge’s orders dismissing the review application were attended by sufficient doubt to warrant reconsideration, the substance of the dispute concerns the orders of the registrar which were effectively affirmed by the dismissal of the review application. On the material before the Court, the orders of the registrar that remain in force are not attended by sufficient doubt to warrant reconsideration given that they do not appear to leave any real possibility of the appellant not being able to obtain the outcome set out in her Amended Response. It remains open to the appellant to amend her Response to seek orders as described in submissions today (that the other party receive no monies from the sale of the Suburb C property) and to seek a variation of the interim orders (based upon the financial information she has obtained since the orders of the registrar). However, this is a question for the Federal Circuit and Family Court of Australia (Division 2).
For these reasons, the application for leave to appeal should be dismissed and the appeal dismissed.
The application for leave to appeal and the appeal have been wholly unsuccessful. The appeal was not the appropriate mechanism for challenging the orders of the primary judge. In the circumstances of this case, the appellant ought to pay the respondent’s costs. The respondent seeks costs of $12,188. On the respondent’s estimate, the scale costs would be $8,692.19. However, this was an appeal of extremely limited ambit. I am persuaded to order that the appellant pay the respondent’s costs but fixed in the sum of $7,000.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 4 March 2025
0
7
3