Daalman & Daalman

Case [2025] FedCFamC1A 33

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FAMILY LAW – APPEAL – EX-TEMPORE – Leave to appeal – Practice and procedure – Where orders the subject of appeal were superseded by later consent orders – Where appellant failed to attend hearing before primary judge – Where the review application was dismissed by the primary judge –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 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

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…

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Details
AGLC
Daalman & Daalman [2025] FedCFamC1A 33
Case
[2025] FedCFamC1A 33
Decision Date

CaseChat Overview and Summary

The appeal in Daalman & Daalman concerns a property settlement application following a 30-year marriage. The appellant sought to appeal against orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 31 October 2024, which dismissed her Application for Review of a registrar’s decision. The primary issue before the court was whether the appeal had any utility and whether the appellant had exhausted all existing remedies available at first instance. The appeal was made against orders that mandated the sale of a property at Suburb C, with specific terms regarding the agents, conveyancer, and reserve price. The appellant also contested the interim property distribution and the terms for holding the balance of the sale proceeds.

The court considered the appellant's failure to attend the hearing before the primary judge and her non-attendance at the appeal hearing, as well as the fact that the orders she sought to appeal had been superseded by later consent orders. Riethmuller J noted that the appellant had not exhausted all existing remedies at first instance, as required by r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The court found that the appeal was futile and dismissed it, with the appellant ordered to pay the respondent's costs in the sum of $7,000.

The final orders of the court were that leave to appeal was refused, the appeal was dismissed, and the appellant was to pay the respondent's costs in the sum of $7,000. This decision underscores the importance of exhausting all available remedies at first instance and the court's discretion to refuse leave to appeal where it is considered futile.

Orders

Orders of the court

NAA 292 of 2024

PAC 1037 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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.

Background

Background to the litigation

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 onec.To be determined by the leading agent with the suggested auction marketing appraisal2 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)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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