Rex & Arata (No 3)

[2025] FedCFamC1A 66

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Rex & Arata (No 3) [2025] FedCFamC1A 66

Appeal from:

Arata & Rex (No 5) [2024] FedCFamC1F 732

Appeal number:

NAA 320 of 2024

File number:

LEC 250 of 2021

Judgment of:

AUSTIN J

Date of judgment:

14 April 2025

Catchwords:

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where procedural orders made less than a week ago anticipating the appeal would be heard by the Full Court no earlier than August 2025 – Where the appeal can be heard in late May 2025 – Where the appellant opposes the earlier hearing dates when she is without legal representation – Where the desire of the mother for legal representation is not the dispositive consideration – Where the desire of the father for prompt determination of the appeal must also be accommodated – Orders made – Appeal hearing fixed for May 2025 – Procedural Orders varied.   

Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67, 69

Judiciary Act 1903 (Cth) s 79

Legal Aid Commission Act 1979 (NSW) s 57

Cases cited:

Bobolas v Waverley Council (2016) 92 NSWLR 406; [2016] NSWCA 139

Dacich v Director of Public Prosecutions (No 1) [2020] NSWCA 297

Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348

Rex & Arata [2024] FedCFamC1A 242

Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23

Number of paragraphs:

19

Date of hearing:

14 April 2025

Place:

Newcastle (via Microsoft Teams)

The Appellant:

Litigant in person

Solicitor Advocate for the Respondent:

Ms Burgess

Solicitor for the Respondent:

Burgess Family Law

Solicitor for the Independent Children's Lawyer:

Legal Aid NSW (Did not participate)

ORDERS

NAA 320 of 2024
LEC 250 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS REX

Appellant

AND:

MR ARATA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	14 APRIL 2025

THE COURT ORDERS THAT:

1.Order 17 made on 8 April 2025 is discharged and the appeal is fixed for hearing before the Full Court at 10.00 am AEST on Monday 26 May 2025.

2.Orders 7 and 10 made on 8 April 2025 are varied in that:

(a)the time for compliance is shortened to 9 May 2025; and

(b)the appellant need only file and serve transcript for 17 February 2024 and 12 April 2024.

3.The time for the appellant’s compliance with Order 14 made on 8 April 2025 is shortened to 9 May 2025.

4.The time for the respondent’s compliance with Order 15 made on 8 April 2025 is shortened to 19 May 2025.

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 Rex & Arata has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. These reasons explain why the appeal hearing is fixed for 26 May 2025 and procedural orders are varied to ensure the appeal is ready for hearing by that date.

   Background

2. Orders were made between the parties, both in respect of their children and their property, by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 1 November 2024.

3. On 28 November 2024, the mother appealed from all orders.

4. The appeal was listed for hearing before Aldridge J on 13 December 2024 for the purpose of affording the mother the chance to explain why the appeal should not be summarily dismissed. Having heard from the parties, his Honour did not summarily dismiss the appeal but did strike out the Notice of Appeal, granted the mother leave to file an Amended Notice of Appeal and, in expectation she would do so, listed the appeal for further directions on 24 February 2025 (Rex & Arata [2024] FedCFamC1A 242).

5. The mother filed her Amended Notice of Appeal on 28 January 2025, but she then applied to adjourn the directions hearing on 24 February 2025. The adjournment was granted, but not ostensibly for the reason sought by the mother. The father foreshadowed his intention to file an application seeking the summary dismissal of the appeal in its amended form and so the proceeding was stood over until 2 April 2025 for that application to be heard.

6. The mother subsequently applied to adjourn the hearing of the father’s summary dismissal application, but the adjournment was refused. On 2 April 2025, his Honour heard and dismissed the father’s summary dismissal application and granted the mother leave to prosecute her Amended Notice of Appeal filed on 28 January 2025.

7. Little more than a week later, on 8 April 2025, the appeal registrar made procedural directions designed to bring the appeal on for hearing before the Full Court no earlier than August 2025. However, the Full Court is able to hear the appeal some six weeks hence at the end of May 2025 and so the proceeding was re-listed to hear the parties about why the procedural orders should not be adjusted to accommodate the appeal being given the earlier hearing date.

8. Somewhat paradoxically, the mother resisted the appeal being heard promptly, but it will be.

   Revised procedural orders

9. The father is anxious to have the appeal determined as quickly as possible. The only reason advanced by the mother for why the appeal should not be listed for hearing six weeks hence is that she is still without legal representation.

10. She applied to the NSW Legal Aid agency for a grant of legal aid in respect of the appeal at some indistinct point after the appeal was filed in late November 2024. Her application was refused and so, on or about 15 January 2025, she sought review of the refusal. On 21 March 2025, she was notified an internal review found the initial refusal of her application was correct and so her appeal would be sent to the Legal Aid Review Panel for an external review, which she was told may take six to ten weeks.

11. Therefore, despite the passage of some four months, the mother’s legal aid application has still not yet been finally determined. It is her expectation that the hearing of the appeal should be delayed until her legal aid application has been finally determined, for which purpose she calls to aid s 57 of the Legal Aid Commission Act 1979 (NSW) (“the State Act”), which is picked up and applied to federal proceedings by the operation of s 79 of the Judiciary Act 1903 (Cth) (Rizeq v Western Australia (2017) 262 CLR 1 at [16], [32], [63], [87] and [90]-[92]).

12. Assuming for present purposes the mother’s entitlement to rely upon s 57 of the State Act, given her residency in the State of NSW, the provision does not unconditionally block the progress of the litigation until her legal aid application is eventually determined, as she seemed to think. Although her legal aid review is still pending (s 57(a)(i)), she must establish the legal aid review process is not intended to improperly delay the conduct of these appellate proceedings (s 57(b)) and there must also be no special circumstances which prevent the Court from delaying the resolution of the curial proceedings until the legal aid review is finally complete (s 57(c)).

13. Here, no question of the immediate adjournment of the hearing of these proceedings arises because the hearing date has not yet been fixed. Rather, the question is how long the hearing of the pending appellate proceedings should be delayed at the mother’s request.

14. Leaving aside the question of the mother’s bona fides which need not be questioned, there are special circumstances which militate against delaying the hearing of the appeal until after the mother’s legal aid application is finally determined, which might not be until June 2025 on current estimates, including these:

    (a)the mother instituted the appeal more than four months ago, presumably in expectation it would be given prompt attention;

    (b)when the mother commenced the appeal, she must have anticipated she would have to conduct the appeal herself if her intended application for legal aid was ultimately refused;

    (c)the mother has demonstrated both her familiarity with legal practice and procedure and her confidence conducting proceedings against the father without the benefit of legal representation by:

    (i)representing herself when the trial was re-opened and then completed on 27 September 2024;

    (ii)filing multiple applications within the original proceedings since the appealed orders were made and appearing before the Court to prosecute those applications;

    (iii)preparing both the Notice of Appeal and the Amended Notice of Appeal, couching the amended appeal in terms of her asserted deprivation of procedural fairness and an apprehension of judicial bias; and

    (iv)filing multiple adjournment applications in the appeal proceedings, supported by affidavits, and preparing lengthy written submissions to successfully resist the father’s application to summarily dismiss the appeal;

    (d)the father is keen to see the appeal resolved quickly and is anxious to enforce the orders by selling property the mother is withholding to retire debt he cannot easily service, yet he must still meet multiple applications filed by the mother within the original proceedings, including:

    (i)contravention applications filed on 19 November 2024 and 2 December 2024 alleging his non-compliance with the appealed orders;

    (ii)an interlocutory application filed on 5 December 2024 (perhaps since amended) seeking further relief in the parenting cause, including injunctions and recovery orders, which relief is incompatible with the appealed parenting orders; and

    (iii)a second application to stay the appealed orders, filed on 9 April 2025, with the first stay application having been dismissed on 19 December 2024.

    (e)by the time the appeal could be heard in late May 2025, the mother will have had six months within which to be ready to prosecute it;

    (f)the written submissions prepared by the mother to meet the father’s summary dismissal application capably addressed the ostensible merit of her grounds of appeal and would presumably form the template for the Summary of Argument she would file for the appeal hearing;

    (g)these appellate proceedings must be conducted quickly, inexpensively and efficiently (s 67(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) of which mandate the Court must remain conscious despite the terms of the State Act (Dacich v Director of Public Prosecutions (No 1) [2020] NSWCA 297 at [6]–[11]; Bobolas v Waverley Council (2016) 92 NSWLR 406 at [186]), and for which purpose the Court is invested with wide procedural powers, including the power to revoke or vary earlier directions (s 69(2)(g) of the FCFCOA Act); and

    (h)if the mother does conduct the appeal without legal representation, it would engage the Full Court’s obligation to impartially assist her (Re F: Litigants in Person Guidelines (2001) FLC 93-072).

15. The mother’s desire for legal representation is understandable, but not the dispositive consideration, as the father’s desire for prompt determination of the appeal must also be accommodated. Ordinarily, the appeal would have been heard by the Full Court sooner than late May 2025, let alone in or after August 2025. The mother’s problem in having her legal aid application determined sooner does not inevitably become the father’s problem by delaying the appeal while she exhausts every possible chance for legal representation, no matter how forlorn the prospect.

16. The appeal is fixed for hearing on 26 May 2025.

17. The appeal book has already been prepared for the mother by the appeal registrar.

18. The mother is relieved of the financial burden of providing transcript for the whole of the trial because it is not relevant to the grounds of appeal she now prosecutes. She only needs the transcript for 17 February 2024 to support Ground 1 and the transcript for 12 April 2024 to support Ground 2. No transcript is required to support Grounds 3 and 4 as they complain of apprehended bias, supposedly evident from the reasons for judgment delivered by the primary judge rather than from any judicial conduct during the trial. If the mother wants to unnecessarily rely upon more transcript at her expense, she can make that application to the Full Court at the hearing on 26 May 2025.

19. The time within which the parties must file and serve their Summaries of Argument and Lists of Authorities is brought forward to ensure readiness for hearing on 26 May 2025.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       14 April 2025