Dalton & Nagle

[2025] FedCFamC1A 4

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Dalton & Nagle [2025] FedCFamC1A 4

Appeal from:

Dalton & Nagle [2024] FCWA 286

Appeal number:

NAA 381 of 2024

File number:

8962 of 2024

Judgment of:

AUSTIN J

Date of judgment:

28 January 2025

Catchwords:

FAMILY LAW – APPEAL – Application in an appeal – Review of decision – Where the appellant seeks review of the decision of the appeal registrar to not list for hearing her application to adduce further evidence in the appeal and to reject her application for an urgent recovery order – Where the application to adduce further evidence is premature – Where there is no power to make original recovery orders in respect of children in the appellate jurisdiction – Review application dismissed.

Legislation:

Family Law Act 1975 (Cth) Pt VII, Div 8

Federal Circuit and Family Court of Australia Act 2021 (Cth) Ch 3, Pt 2

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, rr 13.20, 13.38, 13.39

Number of paragraphs:

10

Date of hearing:

On the papers in chambers

Place:

Newcastle

The Appellants:

Litigants in person

The Respondents:

Litigants in person

ORDERS

NAA 381 of 2024
8962 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS DALTON

First Appellant

MR DALTON

Second Appellant

AND:

MR NAGLE

First Respondent

MS NAGLE

Second Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	28 JANUARY 2025

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 17 January 2025 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).

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

REASONS FOR JUDGMENT

AUSTIN J:

1. These reasons explain the dismissal of an Application in an Appeal filed by the appellant on 17 January 2025.

2. On 27 December 2024, the appellant appealed from an order made by a judge of the Family Court of Western Australia on 3 December 2024, which order summarily dismissed her parenting application on several alternate bases: it was an abuse of process; the Court was a clearly inappropriate forum to entertain the application; the Court lacked power to make the orders for which the appellant applied; and the application had no reasonable prospects of success.

3. On 15 January 2024 the appellant tried to file two Applications in an Appeal – one to adduce further evidence in the appeal and the other seeking the grant of an urgent order authorising the recovery of children from the respondent. The first application was accepted and filed but has not yet been listed for hearing. The second application was rejected.

4. Such administrative action was explained to the appellant by the appeal registrar in a letter sent to her on 16 January 2025 in these relevant terms:

   …

   I refer to your Application in an Appeal seeking to adduce further evidence and the Application in an Appeal for an urgent recovery order, both lodged on the CCP on 15 January 2025. The applications were referred to the [National Appeals Registrar]. For the reasons set out below, [the National Appeals Registrar] has advised the Application in an Appeal for an urgent recovery order is not accepted for filing.

   I refer firstly to the Application in an Appeal seeking to adduce further evidence. The application is premature. At the procedural hearing to settle the contents of the appeal book, Rule 13.20(b) will be applied to the documents sought to be put before the Appeal judge. If, after the procedural hearing, there remains documents that you say are “further evidence” that should be before the appeal court, then your Application in an Appeal can be listed for hearing.

   I now refer to the Application in an Appeal for an urgent recovery order. This Application seeks orders the Federal Circuit and Family Court of Australia (Division 1) has no jurisdiction to make as an interlocutory order in its appellate jurisdiction.  Accordingly, the Application in an Appeal and the supporting affidavit are rejected and will be removed from the Court file.

   …

5. Dissatisfied with that response, the appellant filed an Application in an Appeal on 17 January 2025, reviewing the appeal registrar’s decision to delay listing the first application for hearing and to reject the second application.

6. The appellant requested that the review be conducted in the absence of the parties in accordance with r 13.38 and Pt 5.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), which request is granted.

7. Within the review application and the supporting affidavit, also filed on 17 January 2025, the appellant asserted both misconduct and error on the part of the appeal registrar, but it was unnecessary for her to do so. The review application entails de novo decisions as to whether the first application should be promptly listed for hearing and the second application accepted for filing. They should not.

8. The Application in an Appeal dated 15 January 2025, seeking to adduce further evidence in the appeal, is premature, as the appeal registrar said. At least some of the material the appellant wants to adduce in evidence in the appeal was apparently before the primary judge and will therefore regularly form part of the appeal book, conformably with r 13.20(1)(a) of the Rules. Any documents proffered in evidence to the primary judge, but rejected, will also form part of the appeal book pursuant to r 13.20(1)(b) of the Rules. All documents which fall within the compass of r 13.20 of the Rules will be identified at the upcoming procedural hearing conducted before the appeal registrar. If, after that process is complete, the appellant believes other documents should still be received as further evidence in the appeal then the residue of her application can be listed for hearing contemporaneously with the appeal, as contemplated by r 13.39(4) of the Rules.

9. The Application in an Appeal dated 15 January 2025, seeking recovery orders in respect of two children, is incompetent. The pending appeal invokes the appellate jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) under Ch 3, Pt 2 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). In exercising such appellate jurisdiction, the Court has no power to make recovery orders in respect of children within the original jurisdiction of the Court under Pt VII, Div 8, Sub-div C of the Family Law Act 1975 (Cth). The appellant must pursue such relief from the Family Court of Western Australia, supposing she can first demonstrate in this appeal that the decision of the primary judge to summarily dismiss her original application for such relief was made in error.

10. The review application is dismissed.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       28 January 2025