Rex & Arata (No 3)

Case [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…

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Details
AGLC
Rex & Arata (No 3) [2025] FedCFamC1A 66
Case
[2025] FedCFamC1A 66
Decision Date

CaseChat Overview and Summary

The appeal in this case involves an application by the mother, Ms Rex, to appeal certain family law orders made by the Federal Circuit and Family Court of Australia (Division 1). The orders, which were made on 1 November 2024, related to both the parties’ children and their property. The mother filed an appeal from all of these orders on 28 November 2024. The father, Mr Arata, responded by filing an application for the summary dismissal of the appeal. The appeal was initially listed for directions on 24 February 2025, but was subsequently adjourned to 2 April 2025 to allow the father’s summary dismissal application to be heard. The father’s application was dismissed, and the mother was granted leave to prosecute her amended notice of appeal filed on 28 January 2025. In light of this, the appeal registrar issued procedural directions on 8 April 2025, which were designed to ensure that the appeal would be heard by the Full Court no earlier than August 2025. However, the Full Court is able to hear the appeal in late May 2025 and so the parties were heard about whether the procedural orders should be adjusted to accommodate this earlier hearing date.

The legal issues before the court included whether the appeal should be heard in late May 2025, given that the mother is currently without legal representation, and whether the father’s desire for prompt determination of the appeal should be accommodated. The court found that the mother’s lack of legal representation was not the dispositive consideration in determining the appropriate hearing date for the appeal. Instead, the court considered the father’s desire for prompt determination of the appeal, as well as the need to ensure that the appeal is ready for hearing by the earlier date. The court also noted that the mother had applied for legal aid to assist with the appeal, but that her application had been refused and that she was currently awaiting the outcome of an internal review of that decision.

In light of the above considerations, the court varied the procedural orders made on 8 April 2025 to ensure that the appeal is ready for hearing by 26 May 2025. The court also noted that the mother had applied to adjourn the hearing of the father’s summary dismissal application, but that the adjournment was refused. The court found that the mother’s application for adjournment was not a sufficient reason to delay the hearing of the appeal. The court further noted that the mother had applied for legal aid to assist with the appeal, but that her application had been refused and that she was currently awaiting the outcome of an internal review of that decision.

The court made several orders in relation to the appeal. Firstly, the court discharged Order 17 made on 8 April 2025, and fixed the appeal for hearing before the Full Court at 10.00 am AEST on Monday 26 May 2025. Secondly, the court varied Orders 7 and 10 made on 8 April 2025, shortening the time for compliance to 9 May 2025, and requiring the appellant to file and serve a transcript for 17 February 2024 and 12 April 2024. Thirdly, the court shortened the time for the appellant’s compliance with Order 14 made on 8 April 2025 to 9 May 2025. Fourthly, the court shortened the time for the respondent’s compliance with Order 15 made on 8 April 2025 to 19 May 2025. The court also noted that the form of the order was subject to the entry in the Court’s records, and that the Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order.

Orders

Orders of the court

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).

Background

Background to the litigation

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 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. On 28 November 2024, the mother appealed from all orders. 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). 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. 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. 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. Somewhat paradoxically, the mother resisted the appeal being heard promptly, but it will be.Revised procedural orders 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. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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