Rapallino & Dekker (No 2)
[2025] FedCFamC1A 25
•25 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Rapallino & Dekker (No 2) [2025] FedCFamC1A 25
Appeal from: Dekker & Rapallino (No 2) [2024] FedCFamC1F 726 Appeal number: NAA 323 of 2024 File number: DGC 4162 of 2018 Judgment of: AUSTIN J Date of judgment: 25 February 2025 Catchwords: FAMILY LAW – APPEAL – Practice and procedure – Show cause – Where the primary judge granted a conditional stay of financial orders pending the outcome of the applicant’s appeal from such orders (“the substantive appeal”) – Where the applicant was invited to show cause why the application for leave to appeal from the stay orders should not be summarily dismissed following the Full Court’s dismissal of the substantive appeal – Where no right, duty or liability remains to be remedied in the stay appeal – Where the primary judge ordered the applicant to pay the respondent’s party/party costs of the stay application – Where the respondent made an offer to the applicant similar to the stay orders – Where the applicant does not demonstrate how the findings were not validly open to the primary judge – Application for leave to appeal and appeal summarily dismissed. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Federal Court and Federal Circuit and Family Court of Australia Regulations 2022 (Cth)
Cases cited: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615; [2023] HCA 26
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Rapallino & Dekker [2025] FedCFamC1A 18
Number of paragraphs: 30 Date of hearing: 24 February 2025 Place: Newcastle (via Microsoft Teams) The Applicant: Litigant in person Solicitor for the Respondent: Submitting appearances ORDERS
NAA 323 of 2024
DGC 4162 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS RAPALLINO
Applicant
AND: MR DEKKER
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
25 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Notice of Appeal filed on 29 November 2024 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 Rapallino & Dekker has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
These reasons explain the dismissal of a Notice of Appeal filed on 29 November 2024.
Background
On 8 August 2024, the applicant appealed from financial orders made on 11 July 2024 by a judge of the Federal Circuit and Family Court of Australia (Division 1) between the parties under Pt VIII of the Family Law Act 1975 (Cth).
The appeal was heard by the Full Court in November 2024 and dismissed on 12 February 2025 (Rapallino & Dekker [2025] FedCFamC1A 18).
On 29 November 2024, while the Full Court’s decision was reserved, the applicant applied for leave to appeal from other orders made by the primary judge on 1 November 2025.
On 17 September 2024, while her appeal from the substantive financial orders was pending, the applicant sought a stay of the appealed orders, which application was listed for hearing on 21 October 2024. Just before the stay hearing, on 18 October 2024, the applicant filed another application seeking the primary judge’s disqualification from hearing and determining the stay application, which application was heard and dismissed by the primary judge on 21 October 2024 before proceeding to hear the application to stay the appealed orders. The stay decision was then reserved.
On 1 November 2024, the primary judge published reasons explaining both the refusal of the disqualification application and the conditional grant of the stay application.
The Notice of Appeal filed by the applicant on 29 November 2024, on its face, only asserts it mounts a challenge to two of the four orders made on 1 November 2024 (Orders 1 and 4). Yet, at this summary dismissal hearing, it became evident the applicant intended to challenge the various decisions made by the primary judge to:
(a)dismiss the disqualification application on 21 October 2024 (Order 1);
(b)conditionally grant the stay application on 1 November 2024 (Orders 1, 2 and 3); and
(c)compel the applicant to pay the respondent’s party/party costs of the disputed stay application, in the sum of $8,623.97, on 1 November 2024 (Order 4).
Disqualification
The primary judge’s refusal to disqualify herself from hearing the stay application was a separate judgment from which an appeal lies (s 26(1)(h) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”).
Since the disqualification application was dismissed by an order made on 21 October 2024, any appeal from the order had to be filed by 18 November 2024 (r 13.03(2)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)). None was.
The disqualification decision was not made during the trial of the underlying proceedings, completed by March 2024, so the applicant could not delay and amalgamate her appeal from the disqualification decision with her intended appeal from the subsequent stay decision, pronounced on 1 November 2024 (r 13.03(2)(b) of the Rules).
The Notice of Appeal filed on 29 November 2024 omits to expressly mention any challenge raised to the order made on 21 October 2024 dismissing the disqualification application. The applicant’s intended appeal from that order is out of time.
In any event, while Grounds 2 and 4 relate to the disqualification refusal, perusal of the primary judge’s reasons (at [14]–[28]) and the applicant’s lengthy written submissions fails to reveal any proper basis for now contending her Honour wrongly decided the disqualification application.
Conditional stay orders
Although the applicant did not seek leave to appeal from the stay orders made on 1 November 2024, leave to appeal is required (s 28(3)(e)(i) of the FCFCA Act) because the orders are interlocutory in nature (reg 4.02(1)(a) of the Federal Court and Federal Circuit and Family Court of Australia Regulations 2022 (Cth)).
The application for leave to appeal from the stay orders is now rendered futile by the dismissal of the applicant’s appeal from the substantive financial orders, so the application for leave to appeal from the stay orders was listed to afford the applicant the chance to explain why it should not be summarily dismissed. The applicant accepted the chance to appear and relied upon her written submissions, running to 34 pages in length, which she supplemented orally.
The applicant’s submissions exposed the fallacy of her belief that the stay appeal is a proper vehicle by which she can continue to challenge the validity of the financial orders, even though her appeal from those orders has already been dismissed.
Her submissions amount to a pretence the substantive appeal is either still pending before the Full Court or amenable to reversal by a single judge. For example, she contended:
181. …
181.1These systemic procedural failures constitute a gross miscarriage of justice, necessitating a stay of judgment pending appeal.
…
201.Immediate harm if stay is not granted: Wrongful exclusion of add backs, will cause irreversible financial loss to the appellant…
202.…A stay order is necessary to prevent injustice and irreparable financial harm while the appeal is pending.
(Applicant’s written submissions filed 20 February 2025)
In her oral submissions, the applicant insisted on asserting both the primary judge and the Full Court erred by making and then failing to set aside the substantive financial orders. She either ignored or did not understand the explanations given of how this stay appeal is not the medium to entertain such submissions. By reference to the applicant’s written submissions, Grounds 3, 5, 6 and 7 plainly relate to the substantive financial decision made in July 2024, the appeal from which has already been dismissed.
The Court has no jurisdiction to entertain the stay appeal unless a federal “matter” continues to subsist before it. There can be no “matter” before the Court unless there is some immediate right, duty or liability to be established, which could result in the grant of a remedy at the suit of the applicant to quell the dispute, whether the proceedings are original or appellate in nature (AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615 at [30], [32]–[35], [58], [66], [68]–[74] and [91]–[92]).
Given the dismissal of the appeal from the substantive financial orders, there can no longer be any utility at all to the subsistence of an argument over whether the primary judge correctly refused to stay those orders in the manner the applicant proposed pending the outcome of the appeal. No right, duty or liability remains to be remedied in the stay appeal, even if leave to appeal was granted and the appeal succeeded.
In any event, now the substantive appeal has been dismissed, the applicant could not possibly demonstrate she would suffer substantial injustice to justify the grant of leave to appeal from the stay orders (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]).
The application for leave to appeal from the stay orders is dismissed.
Costs
When dismissing the applicant’s stay application, the primary judge ordered the applicant to pay the respondent’s party/party costs of that confined dispute.
The applicant filed her stay application on 17 September 2024. Several weeks later, on 1 October 2024, the respondent’s solicitors wrote an open letter to the applicant offering not to enforce the appealed orders (subject to certain conditions) pending the determination of her appeal (at [8]–[9]). The wife did not respond to the offer (at [11]). At the hearing of the stay application, the respondent confirmed his willingness to resolve the dispute as he earlier offered (at [13] and [32]). As it transpired, the appealed orders were stayed conditionally, much like the respondent had offered, but the applicant’s proposal for an unconditional stay of all orders was rejected.
The respondent therefore sought his costs of successfully resisting the applicant’s stay application, preferably on an indemnity basis but alternatively on a party/party basis (at [37]). The primary judge correctly referred to binding legal principles (at [38]–[43]) and found the applicant should pay the respondent’s party/party costs (at [48]). Her Honour made the costs order upon finding the applicant imprudently failed to accept the respondent’s offer (at [33] and [47]), her income was superior to the respondent’s (at [44]), and her litigious conduct borders on being vexatious (at [45]–[46]).
The only ground of appeal pleaded within the Notice of Appeal which ostensibly relates to the costs order is Ground 1, which states:
Unfair Cost order Decision in the background of financial crisis
(As per the original)
The “financial crisis” to which the ground refers was not usefully elaborated by any submission. Aside from the applicant having superior income to the respondent, she will also receive 65 per cent of the parties’ property under the financial orders.
The applicant’s written submissions assert error by the primary judge in the assessment of the applicant’s financial position and of her litigious conduct being tantamount to vexatious, but such submissions amount to no more than her disagreement with the findings. The submissions do not demonstrate how the findings were not validly open to her Honour. Although the applicant also asserts she was eligible for legal aid, she does not disagree with the primary judge’s correct observation that she was not actually in receipt of a grant of legal aid (at [45]).
The applicant also submitted the respondent’s offer was “unreasonable”, but that could not be correct because, first, it aligned with the orders actually made by the primary judge, and secondly, it was more favourable to her than the outright dismissal of her stay application and the immediate enforcement of the financial orders, subsequently shown to be valid by the dismissal of her appeal.
The appeal from the costs order evinces no reasonable prospect of success and is therefore summarily dismissed, which order may be made by a single judge exercising appellate jurisdiction (ss 32(3)(b), 32(5) and 46(2) of the FCFCA Act).
Costs
No question of costs arises because the respondent submitted to the decision of the Court and did not appear at the summary dismissal hearing.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 25 February 2025
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