Rex & Arata (No 2)
[2025] FedCFamC1A 58
•2 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Rex & Arata (No 2) [2025] FedCFamC1A 58
Appeal from: Arata & Rex (No 5) [2024] FedCFamC1F 732 Appeal number: NAA 320 of 2024 File number: LEC 250 of 2021 Judgment of: ALDRIDGE J Date of judgment: 2 April 2025 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Summary dismissal – Where the Amended Notice of Appeal contains four well recognised potential errors – Where the particulars of the grounds suggest there may be difficulty in succeeding on the appeal – Where it cannot be said the appeal has no prospects of success – Application for summary dismissal dismissed – Appellant’s application for an adjournment dismissed given the application was decided in her favour. Legislation: Legal Aid Commission Act 1979 (NSW) s 57 Number of paragraphs: 7 Date of hearing: 2 April 2025 Place: Sydney (via video link) The Appellant: Self-represented litigant Solicitor for the Respondent: Burgess Family Law Solicitor for the Independent Children’s Lawyer: Did not participate ORDERS
NAA 320 of 2024
LEC 250 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS REX
Appellant
AND: MR ARATA
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
2 APRIL 2025
THE COURT ORDERS THAT:
1.The appellant is granted leave to file and rely on her Amended Notice of Appeal lodged 28 January 2025.
2.The Application in an Appeal filed by the respondent on 22 March 2025 is dismissed.
3.The Application in an Appeal filed by the appellant on 25 March 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).
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 Rex & Arata has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTALDRIDGE J:
This application concerns a Notice of Appeal filed by Ms Rex on 28 November 2024. The matter was listed on the Court’s own motion to consider striking out the Notice of Appeal given it contained, when regard is had to the grounds and sub-grounds, hundreds of errors of law extending well over 100 pages. In response to that listing the respondent filed an Application in an Appeal seeking the summary dismissal of the appeal on the ground that it had no reasonable prospect of success.
In response, an Amended Notice of Appeal was lodged on 28 January 2025. It now contains only four grounds asserting that there was a denial of procedural fairness in failing to adjourn the hearing, a denial of procedural fairness for refusing a later adjournment application and two assertions of a reasonable apprehension of bias. They are all well recognised potential errors of law.
It is true that the particulars appended to those grounds suggest that there may be some difficulty in succeeding, but the question before me is whether it appears that the appeal, as it stands, has no reasonable prospects of success. A court sitting at this stage of the proceedings is significantly handicapped in that it does not have the trial record before it, has not had the chance to assess it, and has not had the benefit of detailed submissions on the substance of the appeal. Therefore, it has to do the best it can in the circumstances, having regard to the fact that, generally speaking, a regularly commenced appeal should be allowed to proceed to hearing. It is a matter that carries particular weight.
Ms Burgess for the respondent has very properly raised the difficulty with what might be described as the particulars to the grounds, but I am not prepared to say simply by looking at them that they have no reasonable prospects of success. Ms Burgess also rightly points to the Summary of Argument filed on 1 April 2025 by Ms Rex which is 28 pages and was a most unhelpful document and hardly persuasive of allowing the appeal to go forward.
However, taking these things into account I am not persuaded that Ms Rex should be denied the opportunity to proceed with her appeal. She must understand, however, that the court hearing the appeal will deal only with the grounds set out in the Amended Notice of Appeal and that she will be on a strict page limit as to the submissions to be made in support of them. She can expect that the court hearing the appeal will ignore anything that is beyond the strict terms of those grounds.
Ms Rex has applied for legal aid which has been refused, and she has appealed against that decision. The body considering the grant of legal aid is the New South Wales Legal Aid Commission and the Legal Aid Commission Act 1979 (NSW) therefore applies. Ms Rex has an appeal as to the refusal of a grant of legal aid pending and pursuant to s 57 of that Act, I am obliged, except in exceptional circumstances, to adjourn this application pending its outcome. However, since I have determined the application in Ms Rex’s favour, there is no point whatsoever to an adjournment and I decline to grant one.
Accordingly, I give leave to Ms Rex to file and rely on her Amended Notice of Appeal lodged 28 January 2025. The application for summary dismissal is dismissed. The matter will be listed for a procedural hearing before an appeal judicial registrar in due course.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 9 April 2025
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