Dalton & Nagle (No 2)

[2025] FedCFamC1A 5

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Dalton & Nagle (No 2) [2025] FedCFamC1A 5

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:	29 January 2025
Catchwords:	FAMILY LAW – APPEAL – Application in an Appeal – Where the appellant seeks the appeal be allowed on a summary basis without a substantive hearing – Where the appellant complains of the absence of documents filed by the respondents in response to her Notice of Appeal – Where the Full Court must be satisfied the primary judge fell into material legal, factual or discretionary error – Application dismissed.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, rr 13.07, 13.08, 13.09, 13.14, 13.16, 13.17, 13.38
Cases cited:	Hill & Weston [2022] FedCFamC1A 98
Number of paragraphs:	9
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:	29 JANUARY 2025

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 28 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 28 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. The appellant appealed from that order. The appeal will likely be heard and determined within the next two to three months.

4. On 28 January 2025, the appellant filed an Application in an Appeal, supported by an affidavit and a “letter of urgency” filed on the same date. The interlocutory relief she seeks is somewhat unclear, but she appears to want orders made allowing the appeal on a summary basis without the need for any substantive hearing. The appellant appears to seek such relief on the premise the respondents to the appeal have not yet participated in it, either by filing any Cross Appeal, Notice of Contention, Submitting Notice or Notice of Address for Service.

5. The appellant requested that the interlocutory application be determined 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.

6. Assuming the respondents were served by the appellant with her Notice of Appeal on or about 7 January 2025, as she alleges, the time for filing any Cross Appeal by the respondents has now expired (r 13.07(2)(a) of the Rules), though the time for filing a Notice of Contention or Submitting Notice has not yet expired (r 13.08(2) and 13.09(2)).

7. Regardless, the absence of such documents does not mean the respondents accede to the appeal. Even if they did, the appeal could not be allowed unless and until the Full Court is satisfied the primary judge fell into material legal, factual or discretionary error (Hill & Weston [2022] FedCFamC1A 98 at [6]). That decision will not be made until the appeal is substantively heard by the Full Court.

8. Given the appellant has now filed her draft appeal book index as required (r 13.14(2)), the respondents’ first opportunity for participation in the appeal will be at the upcoming directions hearing conducted by the appeal registrar in readiness for the substantive hearing of the appeal (r 13.16 and r 13.17(2)).

9. The Application in an Appeal filed on 28 January 2025 is dismissed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       29 January 2025