In Good & Good [2025] FedCFamC1F 930, Strum J dealt with an awkward (but increasingly common) post-FCFCOA Act problem: two non-party respondents sought review of a Division 2 Senior Judicial Registrar’s decision, but the matter had been transferred into Division 1—creating a jurisdictional “dead end”. His Honour held a Division 1 judge lacked jurisdiction to determine a review of a registrar decision made under Division 2 powers, and therefore requested the Chief Justice transfer the proceedings back to Division 2 so the review applications could actually be heard. ([10], [19]–[21])

🧩 Facts and Issues

Facts: The wife commenced property settlement and spousal maintenance proceedings in Division 2, naming the husband’s mother and brother as second and third respondents, alleging they held property on trust for the husband and seeking alteration of interests under s 79 Family Law Act 1975 (Cth). ([1]–[2]) Those respondents applied to be removed or, alternatively, sought security for costs under s 114UB(2). ([3])

A Senior Judicial Registrar (Division 2) dismissed those applications and also transferred the proceedings to Division 1 under s 149 FCFCOA Act. ([4]) After transfer:

• the second respondent filed an Application for Review in Division 2; and
• the third respondent filed an Application for Review in Division 1. ([5]–[6])

Issues:

1. Does a Division 1 judge have jurisdiction to review a registrar decision made in the exercise of Division 2 powers? ([10], [13]–[15])
2. If not, what procedural step avoids the review applications being stranded without a court able to hear them? ([19]–[21])

⚖️ Applicable Law – Legislation, Regulations, Rules

Federal Circuit and Family Court of Australia Act 2021 (Cth)

• s 100 (Division 1 review jurisdiction: review of a delegate exercising Division 1 powers under s 98). ([10]–[12])
• s 256 (Division 2 review jurisdiction: review of a delegate exercising Division 2 powers under s 254). ([13]–[14])
• s 29 (associated jurisdiction—considered as a possible “workaround”, but treated as not expanding the specific review scheme). ([16]–[18])
• s 52 (transfer power—used here by requesting the Chief Justice transfer back to Division 2). ([21])
• Also referenced: ss 7, 98, 149, 254 (definitions/delegation/transfer framework). ([4], [12]–[14])

Family Law Act 1975 (Cth)

• s 79 (alteration of property interests). ([2])
• s 114UB (security for costs in certain circumstances). ([3])

Rules

• Not determinative to the jurisdiction point, but the orders note r 10.14(b) / r 10.13 of the FCFCOA (Family Law) Rules 2021 (Cth) about correction/variation of orders (standard notation).

📌 Precedents Relied On

• Imtiaz & Vadim [2025] FedCFamC1F 744 — treated as “on all fours”; core authority confirming the strict separation between s 100 (Div 1) and s 256 (Div 2) review pathways. ([7], [15], [17]–[18])
• Vang & Chung (No 3) (2024) FLC 94-220; [2024] FedCFamC1A 199 — referenced re the broader jurisdictional “lacuna” and obiter discussion of s 29. ([8], [17])
• Gilford & Cavaco (2024) FLC 94-183; [2024] FedCFamC1A 55 — cited as another example of unintended jurisdictional consequences post-Act reforms. ([8])

🧠 Analysis

Issue

Whether the Division 1 court can hear a review application challenging orders made by a Division 2 registrar (even where the substantive proceedings have been transferred into Division 1). ([10], [19]–[20])

Rule

• Division 1 review power is confined to review of a delegate’s exercise of Division 1 powers under s 98, via s 100. ([10]–[12])
• Division 2 review power is confined to review of a delegate’s exercise of Division 2 powers under s 254, via s 256. ([13]–[15])
• The wording of ss 100 and 256 is unambiguous and creates an anterior jurisdictional fact: the power being reviewed must have been exercised by a registrar of the same Division that is asked to conduct the review. ([15], [17])
• s 29 associated jurisdiction cannot be used to expand Division 1’s jurisdiction to review Division 2 registrar decisions where the Act sets out a specific review pathway. ([16]–[18])

Application

• The orders under review were made by a Senior Judicial Registrar exercising Division 2 delegated powers. ([4], [10])
• Because s 100 only permits Division 1 to review exercises of Division 1 delegated powers, Division 1 could not hear the third respondent’s review application filed in Division 1. ([10], [20])
• Conversely, although Division 2 is the proper forum under s 256, there were no longer proceedings in Division 2 after the transfer—so the second respondent’s review application (filed in Division 2) would also be stuck unless the substantive proceeding returned to Division 2. ([19])
• Following Imtiaz & Vadim, and agreeing with its reasoning, Strum J accepted there was no statutory bridge to allow Division 1 to conduct the review, and s 29 did not solve the problem. ([7], [15], [17]–[18])

Conclusion

The only practical and lawful solution was to request the Chief Justice (who holds the relevant transfer authority) to transfer the proceedings back to Division 2 under s 52, and list both review applications before a Division 2 judge as a matter of priority. Costs were reserved. ([21]–[22])

🧠 Take-Home Lesson

If a registrar decision is made under Division 2 powers, the review must be heard under s 256 in Division 2—and a later transfer of the main proceeding to Division 1 can accidentally create a jurisdictional bottleneck where neither Division can hear the review unless the case is transferred back. This is exactly the “lacuna” the Court flagged as an unintended consequence of the post-Act jurisdiction structure. ([8], [10], [19]–[21]).

In Abramsson & Abramsson (No 8) [2025] FedCFamC1F 919 (Carew J, 17 December 2025), the Federal Circuit and Family Court of Australia (Division 1) determined final parenting arrangements on a rehearing after a successful appeal. It was common ground that it was not in the children’s best interests to have a relationship with both parents, so the case turned into a stark “which home is safest” decision. The Court ordered the children live with the father, with the mother to have no time and no communication (absent written agreement), aside from limited gifts/cards and information-sharing. ([23], [334], [352]–[353])

🧩 Facts and Issues

Facts: The parties have two young children. The reasons describe repeated exposure to intense parental conflict and traumatic incidents, including an event where the children witnessed the mother drive off a cliff, and another where a child was drawn into a parental argument in a way the Court described as particularly egregious. ([2]–[4], [7]) The children ultimately came to live with the father from September 2024 (with a later interruption), and after a 2025 recovery order they have had essentially no contact with the mother. ([21]–[26])

Key procedural history (why this was “No 8” and a rehearing):

• Interim change of care to father: September 2024. ([21])
• Final parenting order: December 2024 (then appealed). ([22]–[23])
• Appeal allowed and matter remitted for rehearing: April 2025. ([23])
• Mother withheld children for a period; recovery order made; no-contact restraint followed. ([25]–[26])

Issues (as agreed by the parties):

1. Does the father pose a risk to the safety of the children and/or the mother?
2. Does the mother pose a risk to the safety of the children and/or the father?
3. Is it in the children’s best interests to have a relationship with both parents? ([86])

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth) (Pt VII):

• Paramount consideration: best interests (s 60CA). ([70])
• Best interests factors: s 60CC (including safety, family violence history, and whether relationships are beneficial where safe). ([71])
• Unacceptable risk / safeguards: s 60CG. ([72])
• Objects: s 60B (including safety and welfare). ([69])
• Parenting orders content: s 64B; power to make parenting orders: s 65D. ([68])
• Definition of family violence: s 4AB. ([73])
• Consultation duties where joint decision-making applies: s 61DAA. ([85])

Evidence Act 1995 (Cth):

• Civil standard (balance of probabilities): s 140 (noted in the judgment’s legislative list).

Rules:

• Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.08, 7.14 (noted in the judgment’s list).

📌 Precedents Relied On

The judgment listed (among others):

• Pickford and Pickford (2024) FLC 94-230 (guidance on coercive/control-type family violence; focus on behaviour and impact, not necessarily intent). ([74])
• M v M (1988) 166 CLR 69 (unacceptable risk principle in parenting contexts).
• Jones v Dunkel (1959) 101 CLR 298 (adverse inference principles where evidence isn’t called).
• Banks & Banks (2015) FLC 93-637 (best interests / approach to discretion).
• Baghti & Baghti [2015] FamCAFC 71; Lim & Zong [2021] FamCAFC 165; Johnson & Page (2007) FLC 93-344; N and S and the Separate Representative (1996) FLC 92-655; Eastley & Eastley (2022) FLC 94-094; Isles and Nelissen (2022) FLC 94-092 (each listed as cited authorities in the reasons’ front matter).

🧠 Analysis

Issue

Given it was accepted the children should not have relationships with both parents, the Court had to determine:

• whether either parent posed an unacceptable risk, and
• which arrangement best protected the children’s safety and stability, including whether any time/communication with the other parent could safely occur. ([86], [334], [352])

Rule

• The Court must treat the children’s best interests as paramount (s 60CA) and assess best interests using s 60CC, with a strong emphasis on safety and family violence history. ([70]–[71])
• The Court must not make orders that expose a child (or a person) to an unacceptable risk of family violence (s 60CG). ([72])
• Family violence includes behaviour that coerces/controls or causes fear (s 4AB) and can include repeated derogatory taunts and psychologically harmful conduct. ([73])
• In coercive/control allegations, the focus is on behaviour and impact, not necessarily proving intent (Pickford). ([74])

Application

1) Father-risk finding

The Court rejected the mother’s allegations that the father perpetrated family violence, while acknowledging the father could be provocative/insensitive and that his conduct at times was concerning—particularly where he focused on recording events rather than protecting the children. ([6], [216], [223])

However, the Court ultimately found it was not persuaded the father posed an unacceptable risk, pointing to observations of the father presenting as calm and attentive with the children and evidence suggesting stability and support structures. ([213]–[215], [221]–[223])

2) Mother-risk finding

The Court found the mother perpetrated family violence and that the children were repeatedly exposed to her emotional dysregulation, verbal abuse, threats, and dynamics where the children took on inappropriate responsibility for her wellbeing. ([6]–[7], [326]–[328])

A central problem for the Court was the mother’s lack of insight and refusal to accept responsibility, combined with a strong impression she sought vindication as a “victim” and attempted to control processes—features the Court linked to ongoing risk. ([329]–[332])

3) Relationship-with-both-parents / best interests outcome

The Court noted it was common ground that the children should not have a relationship with both parents. ([334]) From there, the decisive question became: which placement best preserves stability and safety, given the history of conflict and disruption.

Key findings driving the outcome:

• The Court found the mother had long opposed the children having a relationship with the father and had taken extreme steps consistent with removing him from their lives. ([340])
• The mother’s conduct around transitions and the period of withholding (with resulting school/daycare disruption) reinforced the Court’s view that, if the children were with the mother (or spending time), there was no real prospect she would facilitate return to the father. ([25], [346]–[347])
• Independent observations supported the children’s functioning and settling in the father’s care, despite grief and loss about separation from the mother. ([349]–[351])
• The Court held that reintroducing the mother in the foreseeable future would undermine stability and pose an unacceptable risk to safety. ([352])

Resulting orders reflected that logic: the children live with the father; father has sole decision-making on major long-term issues; the mother spends no time and has no communication absent written agreement (with limited gifts/cards and some information-sharing safeguards). ([8], [335], [352]–[353])

Conclusion

Because the Court found the father did not present an unacceptable risk, but the mother’s behaviour and lack of insight created ongoing psychological/emotional risk—and because any “shared relationship” model was agreed to be contrary to best interests—the Court concluded the safest and most stable outcome was exclusive care with the father and no contact with the mother (subject to tightly limited indirect connection and information). ([223], [329]–[332], [334], [352]–[353])

🧠 Take-Home Lesson

Where a parent repeatedly exposes children to conflict, involves them in adult disputes, and shows no insight into emotional harm—especially alongside demonstrated incapacity to facilitate the other parent—the Court may make the most drastic parenting outcome: live-with one parent and no time/communication with the other, even when the children clearly love that parent. ([7]–[8], [346]–[347], [352])

In Arata & Rex (No 9) [2025] FedCFamC1F 920, the Federal Circuit and Family Court of Australia (Division 1) refused the wife’s attempt to stay enforcement of final property orders while she pursued a s 79A application (and pointed to an ASIC referral). The Court treated the stay bid as another effort to delay the “fruits of litigation” where the wife’s “new” material was largely old ground, her prospects under s 79A were poor, and sale of the home was the predictable consequence of her non-payment under the final orders.

Facts:

Final parenting and property orders were made on 1 November 2024 (“2024 Final Orders”). The property orders required the wife to pay the husband $1,043,248 within 30 days, failing which the former matrimonial home would be sold (Orders 31(a), 35) ([1]–[3]). The wife’s stay pending appeal was dismissed, her initial appeal was struck out as vexatious/oppressive, and her amended appeal was dismissed ([4]–[5]). When she still did not pay and resisted sale, the husband obtained enforcement orders on 17 October 2025 setting out a sale mechanism, vacancy/possession arrangements, payments (including costs and lenders), s 106A relief, and fixed costs of $13,200 ([6]–[9]). The wife then amended her initiating application to seek a stay of the enforcement orders pending her s 79A application (and referenced ASIC/police material) ([10]–[17]). A Judicial Registrar gave her an opportunity to file a further affidavit strictly for the stay, which she did not do ([25]–[26]). On the hearing date she attempted to rely on numerous historic affidavits at the last minute; the Court refused that course as unfair and non-compliant with directions ([27]–[29]). The stay application was dismissed ([94] + Orders).

🧩 Facts and Issues

Key Facts

• Final property structure: pay $1,043,248 or the home is sold ([3]).
• Appeal path exhausted: stay pending appeal dismissed; original appeal struck out; amended appeal dismissed ([4]–[5], [76]).
• Enforcement orders made: sale/vacancy/warrant mechanisms, payments, costs/lenders, and fixed costs to husband ([8]).
• Wife’s stay case: framed around s 79A themes (fraud/non-disclosure/valuation/ASIC referral) that the Court considered well-worn and largely not new ([12]–[17], [55]–[62]).
• Procedural non-compliance: wife did not file the “one further affidavit” allowed by Registrar; attempted late reliance on historical affidavits; Court refused ([25]–[29]).

Issues

1. Stay discretion: Should enforcement of final property orders be stayed pending the wife’s s 79A application (and asserted ASIC-related developments)? ([39]–[42])
2. Prospects / “arguable case”: Does the wife’s s 79A case show sufficient merit, or is it a re-litigation of trial/appeal issues? ([42]–[62])
3. Fruits of litigation vs. nugatory risk: Where does the balance of convenience lie, including the risk of the s 79A application being rendered nugatory if the home is sold? ([73]–[94])

⚖️ Applicable Law – Legislation, Regulations, Rules

• Family Law Act 1975 (Cth)
• s 79 (property settlement power underpinning final property orders) ([54], [71]).
• s 79A (setting aside/varying property orders for miscarriage of justice reasons incl fraud/non-disclosure/suppression/false evidence; discretionary relief) ([54]).
• Judiciary Act 1903 (Cth) s 78B
• Notice provisions raised but not pressed with evidence at hearing ([33]–[34]).
• Federal Circuit and Family Court (Family Law) Rules 2021 (Cth)
• r 8.15(3)(e) (annexures admitted as Exhibit 1) ([32]).
• (The Court also emphasised compliance with filing directions and procedural fairness when refusing late reliance on historical affidavits) ([27]–[29]).

📚 Precedents Relied On

(As cited and applied in the Reasons)

• Friscioni & Friscioni [2009] FamCAFC 43 — stay is discretionary; onus on applicant to establish proper basis ([40]).
• Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 — settled principles for stays (onus; fruits of litigation; presumption judgment correct; balance of convenience; nugatory risk; preliminary merits) ([40]).
• Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 — reasons need not address every argument ([38]).
• Massalski & Riley (No 2) [2021] FamCAFC 152 — cited as an analogy for repetitive, merit-poor post-judgment strategies designed to delay enforcement; applied to “finality” and “fruits of litigation” reasoning ([85], [93]).
• Samaras & Allen [2021] FedCFamC1F 20 — “nugatory” concept; right rendered worthless/seriously undermined ([89]).
• Langley & Mirza [2025] FedCFamC1A 226 — judge’s role: decide cases presented; not “verify the evidence” as a system-auditor ([82]).
• Arata & Rex (No 8) [2025] FedCFamC1F 727 — prior detailed analysis of wife’s “new evidence”/s 79A themes adopted and relied upon extensively ([14], [47]–[55]).
• Arata & Rex (No 5) [2025] FedCFamC1A 120 and Arata & Rex [2024] FedCFamC1A 242 — appeal history/validation of trial outcomes and finality ([5], [52], [76], [80]).

Analysis

Issue

Whether the wife demonstrated a proper basis to stay enforcement of the final property orders (and enforcement orders) pending the determination of her s 79A application (and her emphasis on ASIC/police referral material).

Rule

A stay is wholly discretionary; the applicant bears the onus of showing a proper basis. Relevant considerations include: entitlement to the benefit of the judgment, presumption the judgment is correct, the insufficiency of merely filing proceedings, bona fides, balance of convenience, risk proceedings will be rendered nugatory without a stay, and a preliminary assessment of arguable merit ([40]–[42]).

For s 79A, it is not enough to allege fraud/non-disclosure etc; the applicant must show a miscarriage of justice and then persuade the Court to exercise discretion. Further, s 79A is not a mechanism to re-litigate or to chase “outstanding queries” after a concluded s 79 determination ([54]).

Application

1) Prospects: the s 79A case looked weak and repetitive

The Court approached the wife’s s 79A case by taking it “at its highest” but still undertaking real evaluation (drawing on the Massalski reasoning adopted earlier) ([54]). It concluded the wife’s themes—pre-action complaints, alleged non-disclosure, fraud/forgery, valuation attacks, “asset stripping” narratives, ASIC/police threads—were not substantively new and had been raised at trial, post-trial, and in the appeal process ([12]–[16], [43]–[53], [55]–[62]). The Court was “most circumspect” about her prospects and stated it did not see she had even an arguable case ([62]).

2) Process matters: late material + ignored directions harmed the stay bid

A Registrar expressly permitted one further affidavit focused on the stay; the wife did not use that opportunity ([25]–[26]). Instead she attempted, minutes before court, to rely on numerous historical affidavits; the Court refused that as procedurally unfair and non-compliant, stressing that court orders are “not options” and portal filing does not mean the Court will entertain material ([27]–[29]). That procedural history fed into the Court’s view of the application’s bona fides and case management fairness.

3) “ASIC referral” and constitutional/forfeiture arguments did not shift the balance

The wife’s emphasis on the police referral to ASIC was treated as carrying little weight because she was the source of the complaints and ASIC had effectively been “seized” of her allegations since at least 2022; there was no evidence ASIC had done anything material ([66]–[69]). The Court rejected the framing that enforcement was an unconstitutional “forfeiture” (Bill of Rights 1688 submission) and characterised the sale as the contractual/operative consequence of non-payment under the final orders, not an unlawful deprivation ([70]–[72]).

What the argument actually was (in the judgment)

The wife’s submission tried to reframe enforcement as a constitutional wrong by invoking the Bill of Rights 1688/1689 (via the Imperial Acts Application Act 1969 (NSW)) and asserting enforcement before “fraud investigations” were resolved amounted to an “unconstitutional deprivation” and an unlawful forfeiture.

Brasch J rejected it on a simple, orthodox basis:

• the trial judge already adjudicated the property dispute and made final orders; and
• this wasn’t “forfeiture” at all — the wife could have paid and kept the house; she didn’t, so the sale was the operative consequence of non-payment under the final orders (the s 79 outcome).

4) Fruits of litigation and balance of convenience: enforcement should proceed

The husband (and the wife) were entitled to the benefit of the final orders; the husband was not obtaining it because of resistance and delay ([73]–[79]). The judgment was presumed correct and had been upheld in substance by the dismissed appeal ([80]–[81]). The Court rejected the suggestion the husband suffered no prejudice by delay; orders were over a year old and both parties remained stalled while interest and liabilities grew ([79], [91]). Importantly, on “nugatory” risk: yes, the home would be sold, but that was a consequence of the wife’s non-payment; and even if she later succeeded under s 79A (contrary to the Court’s view), her own thesis that the business was worth vastly more meant there would be “plenty of money” to adjust ([90]–[92]).

Conclusion

Considering the poor prospects of the s 79A case, the absence of genuinely new material, the finality/appeal history, the prejudice of ongoing delay, and the fact sale followed from non-payment, the balance of convenience lay decisively against a stay. The wife failed to establish a proper basis and the stay application was dismissed ([93]–[94] + Orders).

Take-Home Lessons

• Stays are not automatic: you must show a concrete, credible basis—especially where the underlying orders have survived appeal.
• s 79A is not an appeal-again: it is narrow, miscarriage-focused, and will not reward re-litigation of trial findings dressed up as “new evidence”.
• Case management is substance: ignoring filing directions and trying to ambush with late historical material can be fatal to discretionary relief.
• Non-payment has consequences: if final orders provide “pay or sell,” the sale is typically treated as the foreseeable result of default—not a fresh injustice.

🖼️ Prompt for Banner Image (Horizontal / Wide)

Prompt (Wide 3:1 banner, professional Australian legal infographic style):

A modern Australian family law courtroom scene with a restrained, procedural mood. Foreground: a house title document and a “FOR SALE – ENFORCEMENT” notice beside a stack of papers stamped “STAY REFUSED” and “s 79A APPLICATION.” Midground: a judge’s bench in soft focus, with two self-represented silhouettes at separate tables. Background: subtle scales of justice and faint ledger lines suggesting litigation funding interest accruing. Neutral tones (charcoal, navy, muted gold). No text overlays.

When “Pulling a Sickie” Backfires: $6,555 Costs — and Your Appeal on the Line

In Sum & Lam (No 2) [2026] FedCFamC1A 16, the Federal Circuit and Family Court of Australia (Division 1, Appellate Jurisdiction) refused a self-represented appellant’s second attempt to adjourn an appeal hearing—after medical letters claimed she lacked capacity, but her conduct in the appeal showed the opposite. The day ended with the appeal briefly adjourned only for procedural fairness, a clear warning that the appeal may proceed without her next time, and a fixed “costs thrown away” order of $6,555 payable within 28 days.

Facts:

The appellant appealed property orders made under Pt VIII of the Family Law Act 1975 (Cth) requiring her to keep the former matrimonial home but pay the respondent $797,422 within 90 days, failing which the home would be sold and proceeds distributed ([1]–[3]). She filed a second adjournment application seeking to push the appeal out (ultimately floated as six months) relying on illness and lack of representation ([5]–[10]). She tendered letters from health practitioners asserting she had no capacity to prepare, attend, or instruct lawyers ([15]–[18]). The Court found those opinions inconsistent with her demonstrated ability to prepare detailed appeal material and appear lucidly—until it became apparent she would lose ([19]–[26]). After being told the adjournment was refused, she did not return when the Court resumed, and the Court adjourned the appeal to avoid procedural unfairness but fixed $6,555 costs thrown away ([33]–[40]).

🧩 Facts and Issues

Key Facts

• Appeal filed: Amended Notice of Appeal filed 13 January 2026 ([1], [21]).
• Subject of appeal: property orders only; parenting/child support not challenged ([2]–[3]).
• Adjournment history: first adjournment application dismissed in Sum & Lam [2025] FedCFamC1A 248 ([6]).
• Second adjournment push: sought adjournment again; escalated to six months without evidentiary foundation ([7]–[10]).
• Medical evidence: psychologist + two GPs asserted inability to participate or instruct lawyers ([15]–[18]).
• Conduct undermining “incapacity”: she prepared multiple sophisticated documents and annexed hundreds of pages ([20]–[26]).
• On-the-day collapse/non-appearance: after refusal signalled, she became nonresponsive; later failed to appear at 2:15pm ([33]–[35]).
• Costs consequence: $6,555 fixed costs thrown away ordered due to adjournment ([40]).

Issues

1. Adjournment discretion: Did the appellant’s health and lack of representation justify another adjournment of the appeal hearing? ([9]–[12], [27]–[31])
2. Credibility and capacity: Were the medical opinions reliable when weighed against the appellant’s demonstrated litigation conduct? ([19]–[26], [31]–[32])
3. Proceeding in absence: After the appellant failed to return, should the Court hear the appeal without her? ([35]–[38])
4. Costs: Should the appellant pay the respondent’s wasted costs, and how much? ([40])

⚖️ Applicable Law – Legislation, Regulations, Rules

• Family Law Act 1975 (Cth)
• Pt VIII (property proceedings underpinning the appealed orders) ([2]).
• Part XIVB (publication restrictions noted in the judgment) (Note section).
• s 114Q(2) (approval of pseudonym publication) (Note section).
• Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
• r 10.14(b) (minor corrections to reasons) (Note section).
• r 10.13 (variation to order) (Note section).

(On the adjournment itself, the Court applied the orthodox discretionary approach: the “critical question” was whether health actually precluded preparation/attendance, balanced against prejudice to the respondent—delay, costs, and deprivation of the fruits of litigation) ([12], [31]).

📚 Precedents Relied On

• Sum & Lam [2025] FedCFamC1A 248 — the Court’s earlier decision dismissing the appellant’s first adjournment application; repeatedly used as the benchmark for what was previously argued/decided and for the “critical question” about incapacity ([6], [11]–[12], [27]–[28]).

Issue

Whether the appeal should be adjourned again on health/no-lawyer grounds—and what the consequences should be when the hearing day is derailed.

Rule

• The Court focuses on the functional impact: does the health evidence actually show the party cannot prepare for or attend the appeal? ([12])
• Medical opinions are tested against objective conduct in the litigation and whether the opinions appear formulaic or uninformed by the party’s demonstrated capacity ([19], [25]–[26], [32]).
• The Court weighs prejudice to the respondent: delay, extra costs, and being denied the “fruits of litigation” ([31]).
• If the hearing is wasted/adjourned, costs thrown away may be ordered and fixed ([40]).

Application

• Why the “sickie” failed: the Court found the medical letters “definitive, formulaic” and inconsistent with the appellant’s demonstrated ability to litigate—drafting multiple substantial documents, annexing hundreds of pages, and presenting clear oral submissions ([19]–[26]).
• The tell: the Court observed her presentation “demonstrably diminished” only when it became apparent her submissions were unlikely to succeed—undermining the claimed incapacity narrative ([26]).
• No-lawyer excuse rejected: she’d previously accessed legal advice, had ample time since September 2025, and there were no financial constraints in context of the pool and prior senior counsel engagement ([27]–[29]).
• Prejudice mattered: further delay would deprive the respondent of finality and impose further costs—so the adjournment application was refused ([31]).
• Appeal at risk: after refusal, she failed to appear at 2:15pm; the respondent pressed to proceed without her, and the Court warned this may happen if she does not appear next time ([35], [38]).
• $6,555 consequence: because the appeal was ultimately adjourned (for procedural fairness reasons after her non-appearance), the Court made the fixed costs order she had effectively agreed to in that scenario ([40]).

Conclusion / Orders

• Adjournment application refused ([30]–[31]).
• Appeal and extant applications adjourned to 27 March 2026 at 10:00am (AEDT) by Microsoft Teams ([36] + Orders).
• Appellant to pay respondent’s fixed costs thrown away: $6,555 within 28 days ([40] + Orders).
• Clear foreshadowing: if appellant fails to appear next time, respondent may seek to proceed in her absence ([38]).

✅ Practical Takeaways

• If you claim illness prevents participation, your medical evidence must answer the functional “can’t attend/prepare” question—and it must match your actual conduct ([12], [25]–[26]).
• “No lawyer” won’t carry weight where time, prior access to advice, and financial capacity indicate you could have engaged representation ([27]–[29]).
• A failed adjournment attempt can still end in adjournment for fairness reasons—but you may pay hard, fixed costs for the wasted day ([36], [40]).
• Non-appearance after losing the adjournment fight is dangerous: it sets up the argument that the appeal should proceed without you next time ([35], [38]).

In Dalal & Bunha [2026] FedCFamC1A 13, the Federal Circuit and Family Court of Australia (Division 1, Appellate Jurisdiction) dismissed a property appeal where the self-represented appellant alleged procedural unfairness, lack of transparency, bias/recusal error, erroneous fact-finding, and inadequate reasons . Deputy Chief Justice McClelland held the primary hearing was conducted fairly, the challenged rulings were within discretion, the bias allegations were unfounded, and the key findings (including foreign-asset ownership) were reasonably open on the evidence .

🧩 Facts and Issues

Key facts

• The appellant filed an Amended Notice of Appeal (15 August 2025) challenging property and ancillary orders made in Bunha & Dalal (No 2) [2025] FedCFamC2F 683, raising 12 grounds (procedural fairness, evidence, reasons, bias, discretion).
• The parties married in 1988 in Country B, migrated to Australia in 1995, and have two adult children.
• In the rehearing, the primary judge found the appellant’s disclosure was inadequate and found he owned six properties in Country B, relying on title searches and valuation evidence; his denials were found deliberately false and credibility was damaged .
• The final hearing ran 10, 11 and 15 October 2024; the appellant was subject to a s 102NA ban on personally cross-examining (family violence context) .
• The primary judge refused an adjournment sought on 10 October 2024; on appeal, the Court emphasised timeliness and that the appellant had time to arrange representation .
• The appeal was dismissed, with party/party costs of $14,416.12 payable within 28 days .

Issues (on appeal)

1. Procedural fairness / trial conduct: Did refusal of adjournment, case management, or courtroom management deny a fair hearing?
2. Bias / recusal: Was there actual or apprehended bias (including committee role and a tense exchange), requiring recusal?
3. Facts / evidence: Were findings (including foreign assets) not reasonably open, or based on wrong evidentiary rulings?
4. Reasons: Were reasons inadequate so as to warrant appellate intervention?

⚖️ Law

Appellate restraint in discretionary property cases

• The primary judge exercised a broad discretion in making property orders; appeal requires identifying House v The King error (principle, material fact error, or “plainly unjust/unreasonable”) .

Procedural fairness and case management

• Family law procedure must be conducted “quickly, inexpensively and efficiently as possible” (overarching purpose), supporting firm trial management .
• No automatic entitlement to an adjournment; scheduled hearings should not be moved without cogent reason .
• To succeed on procedural fairness, an appellant must show the alleged unfairness deprived them of the possibility of a successful outcome (Stead) .

Bias / recusal

• Apprehended bias applies the Ebner “double might” test and requires a logical connection between the identified matter and feared departure from merits decision-making .
• Courts should not accept flimsy recusal applications; otherwise litigants could effectively select judges .

The appellant’s bias case relied on two concrete “hooks”: first, that the primary judge chaired the Court’s internal Family Violence Committee, which he claimed meant the judge would be predisposed to favour the respondent because family violence allegations had been raised. The appeal judgment rejected that as untenable, explaining the committee role is a general administrative function and does not involve adjudicating individual disputes or accessing extraneous information that could rationally undermine neutrality. Second, the appellant pointed to a tense exchange at a procedural mention where the judge misspoke about who sought an earlier adjournment, was corrected, and the appellant then accused the judge of lying in open court—later arguing this created personal animosity. The appeal judgment treated that incident (and the appellant’s outburst) as incapable of grounding disqualification: the transcript recorded the judge stating it would not affect impartiality, and reiterated that a litigant cannot manufacture recusal by insulting a judge.

🔍 Application of Law to Facts

1) Procedural fairness / trial conduct

• The Court held refusal of adjournment was a proper exercise of discretion consistent with the overarching purpose , noting the appellant’s predicament largely arose from his own delays in arranging representation .
• Critically, the appellant failed to show prejudice: counsel cross-examined key witnesses and made comprehensive submissions, and the appellant was even allowed to address the Court directly for over an hour .
• The “thrown out of court / intimidated counsel” claim was rejected as a mischaracterisation: the judge’s directions were basic courtroom control, and the Court even accommodated the appellant by providing a laptop feed to view the remote witness .

2) Bias / recusal

• The Court found no evidentiary basis for actual bias, and apprehended bias failed under the objective Ebner framework .
• The judge’s Family Violence Committee role was an administrative function and did not logically support a reasonable apprehension of bias .
• A litigant cannot manufacture disqualification by insulting a judge; robust judicial management and adverse findings do not equal partiality .
• The Court summarised that a fair-minded observer would not apprehend lack of impartiality; grounds 7 and 11 failed .

3) Facts / evidence and adequacy of reasons

• The appellant’s factual attacks were largely disagreement; he did not identify specific overlooked evidence, despite rule requirements for specificity .
• Findings about foreign assets were supported by substantial documentation (titles, transfers, translations, attorney evidence), making the conclusions reasonably open .
• On reasons, the Court held the primary judge’s reasoning was clear and thorough; dissatisfaction with the outcome is not the test .

🧠 Analysis of the Judgment & Judicial Reasoning

What makes Dalal & Bunha useful is how it draws a sharp line between:

• Real unfairness (which can vitiate a hearing), and
• Firm, efficient trial management (which courts are obliged to do).

The Court’s method was pragmatic: it first prioritised integrity-type complaints (procedural fairness/bias) , then tested them against prejudice (Stead) and objective bias doctrine (Ebner) . Once those collapsed, the remaining grounds were treated for what they were: attempts to re-run factual contests without pinpointing appellable error .

📚 Precedents relied on (key ones)

• House v The King (appellate intervention for discretion)
• Stead v SGIC (must show possibility of different outcome)
• Ebner (apprehended bias framework; caution on recusal)
• Aon Risk / Dahdah / Gabrielle v Abood (No 2) (adjournments, efficiency, hearing dates)
• Edwards v Noble (findings “reasonably open” on evidence)

🎓 Take-home lesson learned

• Adjournment refusal ≠ unfair trial unless you can show concrete prejudice and a lost opportunity that could have changed the result .
• Courtroom control ≠ bias: enforcing decorum and keeping a trial on track is part of judging, not proof of partiality .
• Bias claims must map to Ebner: identify the disqualifying matter and articulate the logical connection—“committee role” or “tense exchange” alone won’t do it .
• If you run an appeal as “I disagree with the outcome” without pinpointing appellable error, you risk costs—as occurred here ($14,416.12) .

Nicolescu & Umar [2026] FedCFamC1A 15: The Family Report Fight That Went Nowhere

What Was the Appellant Trying to Achieve — and Why?

The Appellant’s Objective

The appellant (the mother) was attempting to stop the Family Report from being used and to force the appointment of a new single expert.

Specifically, she sought to appeal interlocutory orders made on 15 December 2025 which:

• Refused to exclude the existing Family Report from evidence; and
• Allowed the parties to instead conference with the single expert and put written questions to clarify the report (Orders 3 and 8).

📍 Paras [4]–[6]

Why She Tried to Appeal

The appellant was dissatisfied with the content and conclusions of the Family Report and believed:

• The report was flawed or unfair; and
• A new expert should be appointed immediately, rather than waiting until trial.

Her appeal was an attempt to:

• Short-circuit the trial process, and
• Obtain appellate intervention before her substantive parenting rights were determined.

The Court later characterised this strategy as premature and procedurally misconceived (see discussion of Bass & Bass at [30]).

Why the Appeal Failed: Why This Interlocutory Order Could Not Be Appealed

1. Appeals Only Lie From a “Judgment”

Under ss 26 and 28 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), an appeal may only be brought from a “judgment”.

A judgment must be:

• An operative judicial act, and
• Decisive of a party’s legal rights.

📍 Paras [8]–[11], citing Driclad Pty Ltd v FCT and Yule v Junek.

The orders challenged here:

• Did not determine where the children live,
• Did not determine parental responsibility, and
• Did not finally decide any issue under Pt VII of the Family Law Act.

They were purely procedural.

📍 Paras [11]–[12]

2. Procedural Orders Are Not Appealable Judgments

Justice Strum relied on a long line of authority confirming that procedural rulings about evidence, experts, or case management are not appealable.

Key cases applied:

• Fierro & Fierro [2022] FedCFamC1A 72 – refusal to discharge an ICL not appealable
• Beale & Harvie [2023] FedCFamC1A 181 – same principle
• Conner & Conner (No 2) [2025] FedCFamC1A 223 – procedural orders ≠ judgments

📍 Paras [12]–[17]

Justice Strum expressly stated there is no meaningful distinction between:

• Discharging an ICL, and
• Discharging a single expert report writer.

📍 Para [17]

3. Orders About Evidence Are Not Appealable

The appellant argued the report should not even be admitted.

The Court rejected this by applying Tallant & Kelsey (2016):

• Rulings admitting or refusing evidence are not appealable interlocutory judgments.
• Such rulings can be revisited at trial and given little or no weight.

📍 Paras [18]–[19]

4. The “Best Interests” Argument Was Legally Irrelevant

The appellant relied heavily on s 60CA (best interests of the child).

Justice Strum made it clear:

• s 60CA only applies when making a parenting order under s 64B.
• The impugned orders were not parenting orders at all.

📍 Paras [25]–[28]

This was a fundamental legal error in the appellant’s argument.

5. The Appellant Still Had Remedies — Just Not an Appeal

Crucially, the Court emphasised that the appellant was not without options:

She could:

• Put written questions to the expert (already ordered),
• Seek an adversarial expert under r 7.08 (if thresholds met),
• Cross-examine the expert at trial,
• Argue the report should be given little or no weight, or
• Raise any procedural unfairness in an appeal from final parenting orders.

📍 Paras [22]–[23], applying Falydn & Badenoch and Gerlach v Clifton Bricks.

This reinforced that no injustice had yet occurred.

The Court’s Bottom Line

• The appellant was trying to appeal too early.
• The orders complained of were not judgments.
• They did not determine rights, only the conduct of litigation.
• Allowing such appeals would fragment proceedings and undermine case management.

Accordingly:

• Leave to appeal was refused, and
• The Notice of Appeal was summarily dismissed.

📍 Paras [1], [22], [34]

Costs were awarded against the appellant.

Take-Home Lesson

You cannot appeal your way out of an unfavourable family report.

In Australian family law:

• Interlocutory procedural orders (experts, reports, evidence handling) are almost never appealable.
• The proper place to challenge expert evidence is at trial, not on appeal.
• Attempting premature appeals risks summary dismissal and adverse costs orders.

This case is a textbook warning against misusing appellate processes to relitigate case management decisions.

🧭 Introductory Paragraph

In Ritter & Hermann (No 3) [2026] FedCFamC1F 19, the Federal Circuit and Family Court of Australia (Division 1) exercised its powers under the Australian Passports Act 2005 (Cth) to authorise the issue of a child’s passport without maternal consent, following clear and unexplained non-compliance with earlier court orders. The case is a sharp reminder that parenting disputes about international travel are not determined by obstruction, delay, or opposition in principle—particularly where a party has already agreed to comply and then failed to do so. The Court also imposed fixed costs against the non-compliant parent, reinforcing the consequences of disregarding interim orders.

🧩 Facts and Issues

Key Facts

• Final parenting proceedings concluded early in December 2025, with judgment reserved until 27 February 2026 (¶1–2).
• At the end of trial, the father sought interim time with the child and an order that the mother sign a passport application and produce the child’s expired passport (¶3).
• The mother did not oppose signing the passport application and expressly confirmed she could do so and could produce the expired passport (¶4–5).
• On 16 December 2025, the Court made orders requiring her to sign the passport application and provide the expired passport (¶6).
• The father’s solicitor followed up requesting supporting documents to progress the passport application (¶7).
• Although the father’s time with the child occurred as ordered (¶8), the mother failed to sign the passport application and failed to produce the expired passport, despite multiple attempts to contact her (¶9).
• The father filed an Application in a Proceeding on 23 December 2025 seeking enforcement and alternative relief (¶10).
• At the hearing on 19 January 2026, the father pressed only the order under s 11(1)(b)(i) of the Australian Passports Act (¶11).
• The mother opposed the application, arguing it should be dismissed or adjourned until final judgment (¶13).

Issues

1. Was the mother in breach of the existing court order requiring her to sign the passport application and produce the expired passport?
2. Should the Court authorise the issue of a passport for the child notwithstanding the mother’s lack of consent under s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth)?
3. Should the mother bear the costs of the enforcement application?

⚖️ Law

Statutory Framework

• Australian Passports Act 2005 (Cth) s 11(1)(b)(i)
• Allows a court to authorise the issue of an Australian passport for a child without the consent of a person whose consent would otherwise be required.

Family Law Principles

• Court orders must be complied with unless varied or set aside.
• Objection to an outcome (e.g. overseas travel) does not justify non-compliance with procedural orders facilitating administrative steps.
• Where litigation is necessitated by a party’s non-compliance, costs may follow the event.

🔍 Application of Law to Facts

• Justice Carew found that an order was clearly made on 16 December 2025, and the mother did not comply (¶14).
• Crucially, the mother did not seek to excuse her breach; she simply objected to the child travelling overseas (¶14).
• The Court emphasised that issuing a passport does not authorise travel, particularly while a Family Law Watchlist order remained in place (¶14).
• There was urgency in securing the passport given the father’s potential relocation after final judgment and the likelihood of future overseas travel regardless of outcome (¶15).
• Given the mother’s demonstrated non-compliance, the Court concluded the most effective and proportionate response was to authorise the passport under s 11(1)(b)(i) (¶16).
• The Court declined to make further coercive document-production orders, expressly noting it had “no confidence that the mother will comply” (¶16).
• The father was required to incur costs solely because of the mother’s breach, justifying a costs order fixed at $1,611.50 (¶17).

🧠 Analysis of the Judgment & Judicial Reasoning

Justice Carew’s reasoning is firm, practical, and enforcement-focused:

• The Court drew a clear distinction between:
• Administrative facilitation (obtaining a passport), and
• Substantive parenting outcomes (whether the child may travel overseas).
• The mother’s attempt to delay the passport issue until final judgment was rejected because it conflated these two distinct issues (¶14–15).
• The judgment reflects judicial intolerance for passive resistance—where a party agrees to orders, then quietly fails to comply.
• The refusal to order further document production underscores an important point: courts are not obliged to issue futile orders where non-compliance is likely (¶16).
• The costs order serves both compensatory and deterrent functions, reinforcing that enforcement applications should not be necessary in the first place (¶17).

📚 Precedents Relied On

• None expressly cited.
• The decision rests squarely on the clear statutory power in the Australian Passports Act 2005 (Cth) and orthodox enforcement principles.

🎓 Take-Home Lesson Learned

• A parent cannot veto administrative steps like passport issuance by simply withholding consent in defiance of court orders.
• Courts will readily use s 11(1)(b)(i) where consent is unreasonably withheld or orders are breached.
• Maintaining a Family Law Watchlist order can neutralise travel risk while still allowing compliance with procedural requirements.
• Non-compliance with interim orders is likely to attract adverse credibility findings and costs consequences.
• Saying “I’ll try” in court creates an expectation of compliance—failure to follow through carries real consequences.

In Fierro & Bien [2026] FedCFamC1A 14, the Federal Circuit and Family Court of Australia (Division 1, Appellate Jurisdiction) considered whether an appeal hearing should be adjourned for one day due to the appellant’s unavoidable attendance at a Tribunal-ordered mediation. Although modest in scope, the decision is a useful illustration of appellate case-management discretion, the operation of s 32 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), and the Court’s pragmatic approach to procedural fairness—particularly where the appellant is self-represented.

🧩 Facts and Issues

Key Facts

• The appellant, Mr Fierro, was self-represented (litigant in person).
• He filed an Amended Notice of Appeal on 9 November 2025 challenging trial orders made on 5 November 2025 (¶1).
• The appeal was listed before the Full Court for 25 February 2026 (¶2).
• Separately, the appellant was required to attend a Tribunal-ordered mediation on that same date, arising from proceedings against a professional body (¶4).
• On 15 January 2026, he filed an Application in an Appeal seeking an adjournment (¶5).
• The appellant ultimately agreed to a one-day adjournment so the appeal could be heard on 26 February 2026 (¶6).
• Neither respondent nor the Independent Children’s Lawyer opposed the adjournment (¶7–8).

Issues

1. Does a single judge have jurisdiction to determine an interlocutory adjournment application in an appeal?
2. Is it reasonable and appropriate to adjourn an appeal hearing for one day due to a conflicting Tribunal mediation?

⚖️ Law

Statutory Framework

• Section 32, Federal Circuit and Family Court of Australia Act 2021 (Cth)
• s 32(3)(c): A single judge may make interlocutory orders pending the determination of an appeal.
• s 32(5): Such applications are ordinarily to be heard by a single judge unless otherwise directed.

Procedural Principles

• Courts retain a broad case-management discretion to adjourn proceedings where fairness requires it.
• Procedural fairness includes ensuring a party is not required to choose between compliance with two compulsory legal processes scheduled at the same time.

No contested precedent was required given the consensual and procedural nature of the application.

🔍 Application of Law to Facts

• Justice Howard confirmed jurisdiction under s 32 to determine the adjournment as a single judge (¶3).
• The appellant demonstrated a genuine and unavoidable clash: attendance at a Tribunal mediation ordered on 10 December 2025 (¶4–5).
• The Court proactively sought submissions on whether a limited adjournment would resolve the difficulty (¶6).
• Importantly, the appellant’s agreement to a one-day adjournment, rather than a longer delay, weighed heavily in favour of granting relief.
• The absence of opposition from any other party further supported the exercise of discretion (¶7–8).

🧠 Analysis of the Judgment & Judicial Reasoning

Justice Howard’s reasoning is concise but instructive:

• The Court emphasised reasonableness and proportionality, granting only the minimum adjournment necessary (¶9).
• The decision reflects sensitivity to the position of a litigant in person, without conferring any unfair advantage.
• The Court balanced:
• efficient appellate timetabling, against
• the appellant’s right to meaningfully participate in both proceedings.

The adjournment avoided forcing the appellant into an impossible position while preserving the integrity of the appellate process.

📚 Precedents Relied On

• None expressly cited, reflecting the uncontroversial, interlocutory nature of the application.
• The decision rests squarely on statutory power (s 32) and orthodox case-management principles.

🎓 Take-Home Lesson Learned

• Appeal courts can and will act pragmatically where procedural fairness is at stake.
• A single judge has clear authority to deal with interlocutory matters in appeals.
• Parties—especially self-represented litigants—should:
• act promptly,
• provide clear evidence of unavailability, and
• propose proportionate solutions (e.g. a short adjournment).
• Cooperation and reasonableness can significantly influence discretionary outcomes.

Abramsson & Abramsson (No 8) [2025] FedCFamC1F 919 is one of the most confronting parenting judgments of 2025. After an appeal and rehearing, the Court made the rare and extreme order that two very young children live with their father and spend no time with their mother, despite evidence of mutual conflict and acknowledged love between the children and the mother.

The decision is a stark illustration of how persistent emotional abuse of a child, lack of insight, and refusal to accept responsibility can ultimately outweigh biological attachment, history of primary care, and even a parent’s genuine love.

FACTS

The Family

• Two children: X (born 2018) and Y (born 2021) (¶1, ¶11)
• Parents married in 2013, separated April 2022 (¶10)
• Mother was primary carer until September 2024 (¶13)
• Proceedings commenced in May 2022; ICL appointed June 2022 (¶15)

Key Traumatic Events

• April 2022 cliff incident: children witnessed mother drive off a cliff; father filmed part of the incident while holding Y (¶2)
• Recorded verbal abuse: mother taunted X and involved her directly in parental conflict, forcing loyalty choices (¶3–4)
• Repeated exposure of children to intense adult conflict (¶5–7)

Procedural History

• Interim supervised time for father (¶18–19)
• Children later placed with father; mother ultimately restrained from contact (¶21–26)
• Final parenting orders appealed and successfully set aside (¶23)
• Matter reheard before Carew J over 11 hearing days (¶31–32)

ISSUES (IRAC – “I”)

1. Did either parent pose an unacceptable risk to the children?
2. Were allegations of coercive control and family violence proven?
3. Is it in the children’s best interests to have a relationship with both parents?
4. Can the Court order no time with a parent despite mutual love and attachment?

RELEVANT LAW (IRAC – “R”)

Key statutory provisions:

• Best interests paramount – s 60CA Family Law Act 1975 (¶70)
• Primary considerations – safety, family violence, meaningful relationships (s 60CC; ¶71–72)
• Family violence definition – s 4AB (¶73–76)
• Unacceptable risk test – M v M (1988) 166 CLR 69 (¶78–80)
• Risk assessment without definitive findings – Eastley & Eastley (2022) FLC 94-094 (¶80)
• Court not required to determine every factual dispute – Baghti & Baghti [2015] FamCAFC 71 (¶81)

Key authority on coercive control:

• Pickford & Pickford (2024) FLC 94-230 (¶74)

APPLICATION OF LAW TO FACTS (IRAC – “A”)

1. Mother’s Allegations Against the Father

The Court rejected the mother’s allegations of:

• Physical assault
• Coercive control
• Financial abuse

Reasons included:

• Lack of corroboration (¶119–123)
• Inconsistencies in accounts
• Failure to call available corroborative evidence (¶110; Jones v Dunkel)

2. Findings Against the Mother

The Court made strong adverse findings that the mother:

• Engaged in family violence against both the father and the children (¶6–7)
• Emotionally abused X by:
• Taunting
• Mocking
• Forcing loyalty conflicts
• Continuing abusive language while the child was distressed (¶3–4, ¶7)

The Court described this behaviour as “particularly egregious” (¶7).

3. Insight and Capacity for Change

A decisive factor was lack of insight:

“If that same parent… accepts no responsibility and shows no insight into the damage that such behaviour causes, that parent is unlikely to be one with whom it will be in the child’s best interests to live or even have contact.” (¶7)

The Court accepted:

• The father’s autism did not create unacceptable risk (¶88–94, ¶116)
• The father demonstrated greater emotional containment and capacity to shield the children from conflict

THE JUDGMENT & REASONING (IRAC – “C”)

Orders Made

• Children to live with the father
• Father granted sole responsibility for all major long-term issues
• No time or communication with the mother, save:
• Cards/gifts on birthdays, Christmas, Easter (¶8; Orders 3–4)
• Limited informational rights preserved for mother (Orders 7–11)

Why the Judge Decided This Way

Carew J accepted that:

• Both parents loved the children
• The outcome was “sad” and “devastating” (¶8–9)

However:

• The risk of further emotional harm from the mother’s behaviour was unacceptable
• The Court’s role is protective, not reparative
• The children’s psychological safety outweighed the benefit of maintaining the maternal relationship at this time

TAKE-HOME LESSONS

🔹 For Parents

• Love alone is not enough.
• Insight, accountability, and child-focused behaviour are decisive.
• Involving children in adult conflict can permanently alter outcomes.

🔹 For Practitioners

• Emotional abuse findings can justify no-time orders, even absent physical violence.
• Courts will prioritise future risk, not past caregiving roles.
• A parent who refuses to accept responsibility is a high forensic risk.

🔹 For the System

This case reinforces that:

• Courts can and will make extreme orders when emotional harm is entrenched
• Reunification is not automatic—even where children express love for both parents

In Jefford & Kaluza [2026] FedCFamC1A 6, the Full Court of the Federal Circuit and Family Court of Australia (Hogan, Altobelli & Jarrett JJ) overturned draconian parenting orders that completely severed a father’s contact with his two children. The appellate judges found that the trial judge had failed to consider crucial prior findings, ignored credibility evidence, and misapplied the principles governing unacceptable risk and evidentiary assessment under the Family Law Act 1975 (Cth). The decision is a powerful reminder that risk assessments in child protection cases must be evidence-based, holistic, and procedurally fair.

Facts and Issues

Facts

• The parties, Mr Jefford (father) and Ms Kaluza (mother), were parents of two children, X (b. 2017) and Y (b. 2019).
• In 2019 and 2020, the mother alleged the father had sexually abused X, then a toddler. These allegations were dismissed in Kaluza & Jefford [2025] FedCFamC1F 281 by Austin J, who found no unacceptable risk and questioned the mother’s credibility for possible tactical conduct.
• Despite those findings, in 2023 the mother again alleged sexual abuse following the children’s contact visits.
• The 2025 primary judge (Smith J) made no-contact orders and found a “real and substantial possibility” that the father had sexually abused X and posed an unacceptable future risk to both children.
• The father appealed, arguing that the trial judge ignored prior evidence, failed to assess credibility properly, and erred in finding risk without evidentiary foundation.

Issues

1. Did the primary judge err by failing to consider relevant prior judicial findings (Austin J’s 2022 decision)?
2. Was the mother’s credibility adequately assessed in light of her conduct and conflicting evidence?
3. Was the finding of “unacceptable risk” properly supported by reliable evidence?
4. Did the trial judge err by failing to consider whether risk could be mitigated by less restrictive orders?

Rule (Law)

Key Legal Principles:

• Unacceptable Risk Test: Derived from M v M (1988) 166 CLR 69 — courts must balance the possibility of risk against the harm of severing a parent-child relationship.
• Best Interests of the Child: Family Law Act 1975 (Cth) ss 60CA, 60CC — child safety is paramount, but relationships should be maintained where safely possible.
• Appellate Standard: House v The King (1936) 55 CLR 499 — appellate intervention justified if discretion exercised on wrong principle, relevant considerations ignored, or result plainly unjust.
• Standard of Proof: Briginshaw v Briginshaw (1938) 60 CLR 336 — the more serious the allegation, the clearer the proof required under s 140 of the Evidence Act 1995 (Cth).
• Weight and Credibility: Fox v Percy (2003) 214 CLR 118 — appellate courts conduct a “real review” of evidence, not a mere deference to findings.
• Expert Evidence: Judges must assess experts’ reasoning and factual basis, not defer blindly (GLJ v Trustees of the Roman Catholic Church (2023) 280 CLR 442).

Application (Analysis)

1. Failure to Consider Prior Findings

Justice Hogan found that the primary judge’s refusal to consider Austin J’s 2022 judgment was a fundamental legal error. The earlier findings, which discredited the mother’s allegations and identified tactical reporting, were highly relevant to assessing her 2023 claims and credibility.

By “proceeding as though none of that had happened,” the judge acted on a wrong principle and ignored material considerations, violating House v The King.

2. Misapprehension of Evidence and Credibility

The appellate court highlighted significant inconsistencies:

• The mother told a counsellor that X said “Daddy made my gina bleed,” a statement later proven false.
• She misled both the counsellor and the court expert by implying that the child had made that statement, when in fact the mother herself invented it.
• Despite these fabrications, the trial judge found her “a credible witness” — a finding the Full Court described as “demonstrably wrong and contrary to compelling inferences.”

This failure to grapple with credibility destroyed the factual foundation for any risk finding.

3. Weight Given to Unchallenged Expert Evidence

While the trial judge relied heavily on the Court Child Expert’s interpretation of the child’s “disclosures,” the expert’s evidence was derived from hearsay and unverified counselling notes. The counsellor (Ms DD) was never called, meaning the reliability of her notes could not be tested. The appellate court held it was unacceptable to rely on such untested material where the ICL failed to discharge their obligation under s 68LA(2) of the Family Law Act.

4. Failure to Balance Harm and Benefit

The trial judge recognised that cutting contact would cause “inevitable psychological harm” to the children but made no finding explaining why supervised or identity contact could not ameliorate risk.

The appellate court found this omission contrary to law, citing Betros & Betros [2017] FamCAFC 90 — courts must weigh protective harm vs relational harm and explain why lesser restrictions would not suffice.

Judgment and Reasoning

• Appeal Outcome: Allowed.
• Orders: Parenting orders set aside; matter remitted for retrial before a different judge; both parties granted Federal Proceedings (Costs) Act 1981 (Cth) certificates.
• Reasoning:
• The trial judge erred in law by failing to consider relevant historical findings (Austin J, 2022).
• Findings of risk and credibility were unsustainable given the factual inconsistencies.
• The reliance on untested expert material and failure to consider risk mitigation amounted to appealable error.
• The overall judgment was “plainly unjust,” satisfying House v The King.

Cited Precedents

• M v M (1988) 166 CLR 69
• House v The King (1936) 55 CLR 499
• Fox v Percy (2003) 214 CLR 118
• Lee v Lee (2019) 266 CLR 129
• GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442
• Isles & Nelissen (2022) FLC 94-092
• Betros & Betros [2017] FamCAFC 90

Take-Home Lesson

Jefford & Kaluza [2026] stands as a powerful caution against narrow, decontextualized findings in sexual risk cases.

Judges must:

• Assess risk holistically, considering prior credibility and findings.
• Avoid overreliance on hearsay or untested expert notes.
• Balance protection with the psychological cost of total estrangement.
• Provide transparent reasoning for why less restrictive orders (e.g., supervision) won’t suffice.

Ultimately, Hogan J’s reasoning restores faith in appellate oversight as a safeguard against “procedural tunnel vision” in family law risk assessments.

The Full Court of the Federal Circuit and Family Court of Australia (McClelland DCJ, Riethmuller & Kari JJ) in Arrighetti & Qodirova [2026] FedCFamC1A 1 delivered a landmark appellate judgment clarifying the scope of judicial discretion in cases involving emotional and psychological harm to children. The Court dismissed a mother’s appeal challenging draconian parenting orders that imposed a six-month moratorium on contact with her daughter, indefinite supervision thereafter, and a total prohibition on contact between the child and the maternal grandmother. The case underscores the balance courts must strike between protecting children from emotional harm and preserving their right to maintain relationships with both parents under the Family Law Act 1975 (Cth) and the UN Convention on the Rights of the Child.

Facts and Issues

Facts:

• The child (aged 10) had lived primarily with the mother since 2018.
• The mother alleged the father sexually abused the child; these claims were not substantiated.
• The primary judge found that the mother and maternal grandmother’s entrenched and unjustified beliefs caused emotional harm to the child, justifying a change of residence to the father and a moratorium on maternal contact for six months, followed by indefinite supervised time.
• The mother appealed, arguing the measures were disproportionate, unsupported by evidence, and failed to consider alternatives that preserved the child’s relationship with her primary carer and extended family.

Issues:

1. Did the trial judge err in finding the mother posed an “unacceptable risk” of harm?
2. Were the orders for six-month moratorium and indefinite supervision disproportionate?
3. Did the primary judge fail to consider less restrictive alternatives that protected both safety and relationship continuity?
4. Did the trial judge’s reasoning satisfy the obligation to explain key factual and legal conclusions?

Rule (Law)

• Best Interests Principle: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65AA, 65D.
• The child’s best interests are the paramount consideration, particularly the safety of the child and the benefit of maintaining parental relationships where safe to do so.
• Judicial Discretion: The appeal court will intervene only where the discretion was exercised on a wrong principle or led to a plainly unjust result (House v The King (1936) 55 CLR 499).
• Risk Assessment: Determinations of “unacceptable risk” must be evidence-based rather than discretionary (Isles & Nelissen (2022) FLC 94-092).
• Proportionality: Courts must ensure orders are proportionate to the degree of risk, balancing protection and parental contact (Betros & Betros [2017] FamCAFC 90).
• International Influence: UN Convention on the Rights of the Child arts 7, 9, 18 underscore children’s rights to know and be cared for by both parents, subject to safety considerations.

Application (Analysis)

1. Apprehended Risk and Maternal Beliefs

The Court upheld the finding that the mother’s persistent belief that the father was a sexual abuser, though unsubstantiated, created an unacceptable risk of emotional and psychological harm. Evidence included recordings of the mother and grandmother encouraging the child to frustrate contact with the father and engage police unnecessarily. The expert psychologist, Mr D, described “diffuse boundaries” and an “emotional alliance” between mother and child that impaired the child’s development and relationship with the father.

2. Moratorium and Indefinite Supervision

While the appellate bench acknowledged that the trial judge mistakenly thought the family report writer endorsed a six-month moratorium, it found the error immaterial since the evidence still justified a substantial period of no contact to stabilise the child’s new environment.

The Court reaffirmed that long-term supervised contact is undesirable but may be justified where a parent’s entrenched psychological stance cannot be contained and poses ongoing emotional risk.

3. Proportionality and Alternatives

McClelland DCJ accepted that courts must ordinarily explore alternatives to indefinite supervision (Betros & Betros, Slater & Light, Moose & Moose), but held that the mother’s refusal to moderate her beliefs and the grandmother’s reinforcing conduct left no safe alternative. The supervision order was therefore protective, not punitive, aligning with s 60CC(2)(a)’s emphasis on safety.

4. Rights of the Child and International Context

The Court invoked CROC to emphasize that while children have a right to parental connection (Arts 7, 9, 18), such rights exist only “where it is safe to do so.” The judgment reaffirmed that the Family Law Amendment Act 2023 shifted focus from “maximum involvement” to safety-first decision-making.

It was acknowledged that emotional abuse stemming from unfounded fixed beliefs constitutes a form of “harm” under s 60CC(2)(a), justifying the restrictions.

Judgment and Reasoning

• Outcome: Appeal dismissed; orders upheld.
• The Court found no appealable error in the trial judge’s factual findings or discretionary exercise. The mother was ordered to pay $13,979.86 in costs.
• Reasoning:
• The trial judge correctly prioritised psychological safety over relationship continuity.
• Findings were grounded in credible expert evidence and consistent with authority (Bielen & Kozma (2022), Pierce & Pierce (No 2) (2025)).
• The restrictive orders were open on the evidence, given the child’s exposure to harmful narratives.
• Supervision could be lifted if the mother demonstrated insight and compliance through therapeutic progress.

Precedents Relied Upon

• House v The King (1936) 55 CLR 499
• Bielen & Kozma (2022) FLC 94-123
• Isles & Nelissen (2022) FLC 94-092
• Betros & Betros [2017] FamCAFC 90
• B & B (1993) FLC 92-357
• Bondelmonte v Bondelmonte (2017) 259 CLR 662
• Pierce & Pierce (No 2) [2025] FedCFamC1A 162
• Re: Thomas (2009) 41 Fam LR 220

Take-Home Lesson

This case is a cautionary tale in how emotional risk and fixed beliefs can be as harmful as physical abuse in the eyes of the Court.

Judicial discretion under the Family Law Act now operates within a safety-first paradigm, reinforced by the 2023 reforms.

Parents involved in high-conflict parenting disputes must demonstrate insight, therapeutic engagement, and the ability to separate belief from behaviour—or risk long-term supervision or loss of contact.

The judgment also clarifies that CROC’s influence persists as a moral compass for balancing children’s rights and safety, even though not directly incorporated into domestic law.

The appellate judgment in Leena & Leena [2025] FedCFamC1A 241 (Hogan, Altobelli & McNab JJ) serves as a critical reminder that judicial neutrality must not only exist but must be seen to exist. The Court partially allowed an appeal from parenting and property orders after finding that the trial judge’s premature comments and conduct during the hearing gave rise to a reasonable apprehension of bias. The case further addressed errors in the trial judge’s approach to contributions in the property settlement, setting aside those orders and remitting the matter for rehearing before a different judge.

Facts and Issues

• The appellant (mother) and respondent (father) disputed both parenting arrangements for two children and property settlement orders.
• During trial, the mother applied for the primary judge’s recusal, arguing his comments suggested prejudgment. Her application was refused, and the final orders were made largely in the father’s favour.
• The judge commented mid-trial that he was “not persuaded” the father posed a risk to the children—before the father was cross-examined—and made remarks suggesting the mother would “never find [the father] good enough”.
• On appeal, the mother alleged apprehended bias, failure to consider material evidence, and error in applying a presumption of equal contributions in property division.

The issues were:

1. Whether the judge’s conduct and comments created a reasonable apprehension of bias.
2. Whether the judge misapplied the law on property contributions, suggesting a presumption of equality.
3. Whether the judge failed to provide adequate reasons and consider all relevant material.

Rule (Law)

1. Apprehended Bias Principle:
2. A judge is disqualified if “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Charisteas v Charisteas (2021) 273 CLR 289).
3. Judicial Conduct and Commentary:
4. Judges may offer provisional views to assist counsel (Johnson v Johnson (2000) 201 CLR 488), but such remarks must not appear to predetermine issues or reflect prejudgment.
5. Contributions in Property Settlement:
6. Under s 79(4) of the Family Law Act 1975 (Cth), contributions are assessed holistically; there is no presumption of equality (Mallet v Mallet (1984) 156 CLR 605).
7. Adequate Reasons:
8. Failure to address key evidence or provide logical reasoning constitutes error (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430).

Application (Analysis)

1. Apprehended Bias

Justice Hogan (with Altobelli and McNab JJ agreeing) found that the timing and tone of the primary judge’s remarks would lead a fair-minded observer to doubt his impartiality.

• On the first trial day, before all evidence was heard, the judge stated:

“I’m not persuaded that the father presents a risk to these children… I’m not persuaded that the interests of the children warrant reduction in time.”

• These comments, though qualified as “preliminary,” occurred mid-cross-examination of the mother and before hearing the father, implying a premature conclusion.
• On the second day, he urged settlement in line with the Independent Children’s Lawyer’s proposal—again suggesting he had formed an early preference.
• The Court cited Johnson v Johnson and Charisteas v Charisteas, reaffirming that the appearance of bias suffices to vitiate a judgment.

Justice Hogan observed that repeated expressions of scepticism toward one party’s case and the invitation to the opposing party to apply for interim orders during the other’s illness compounded the appearance of partiality.

“A fair-minded observer might reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of the issues he was required to decide.”

Thus, the apprehended bias ground was made out.

2. Property Contributions

The appellate bench held that the trial judge had erred in treating contributions as presumptively equal, contrary to Mallet v Mallet. While equality can be a result, it cannot be a starting point. Repeated references to making an “adjustment” implied the judge assumed parity before considering evidence of the wife’s post-separation inheritance and homemaker contributions. This amounted to legal error warranting rehearing on property division.

3. Adequacy of Reasons

Certain factual and evidentiary matters—such as the mother’s medical evidence and child welfare concerns—were not adequately addressed. The Court cited Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 for the principle that reasons must expose the reasoning path; failure to do so renders appellate review impossible.

Judgment and Reasoning

• Appeal Outcome:
• The appeal was allowed in part. Parenting orders were upheld, but property orders (Orders 27–44) were set aside. The case was remitted for rehearing before a different judge.
• Both parties received costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and the new trial.
• Judicial Reasoning:
• The Court emphasized that even “tentative” judicial views can breach neutrality when they appear outcome-determinative.
• The principle of impartiality “overrides any case management considerations” and protects public confidence in the judiciary.
• Hogan J summarized:

“It was very unfortunate that the primary judge made the comments that he did… at a time when he had not seen the respondent be cross-examined.”

Precedents Relied Upon

• Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
• Johnson v Johnson (2000) 201 CLR 488
• Charisteas v Charisteas (2021) 273 CLR 289
• Mallet v Mallet (1984) 156 CLR 605
• Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
• House v The King (1936) 55 CLR 499

Take-Home Lesson

Judges must avoid comments or conduct that could suggest prejudgment, especially during live evidence. Even expressions of “preliminary” opinions may create a perception of bias if made prematurely or repeatedly. For practitioners, this decision reinforces vigilance in protecting procedural fairness — and the need to object when judicial commentary risks crossing that line.

In Tekla & Tekla [2025] FedCFamC1A 245, Justice Riethmuller of the Federal Circuit and Family Court (Division 1) delivered a landmark decision on the operation of the Division 2 costs scale and the proper application of “solicitor and client” costs in family law proceedings. The Court allowed the appeal, finding the primary judge had no evidentiary basis for a $78,955 lump-sum costs order and instead fixed the amount at $64,685.98. The judgment provides critical clarification on how courts should determine reasonable rates and time for legal work under the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) and how the discretion under s 114UB of the Family Law Act 1975 (Cth) should be exercised judicially, proportionately, and transparently.

Facts and Issues:

• Following a four-day property trial, the respondent (husband) successfully sought a costs order against the appellant (wife) after she refused a reasonable settlement offer and conducted the litigation in an unnecessarily expensive and obstructive manner.
• The primary judge ordered the wife to pay $78,955 in costs, representing half the respondent’s claimed total, despite minimal evidence of the actual work done or the reasonableness of the charges.
• The appellant, self-represented, appealed, arguing the costs order was unfair and unsupported by evidence.
• The key issue on appeal was whether the trial judge erred by fixing a lump-sum costs order without any evidentiary foundation and without reference to the relevant Division 2 costs scale.

Issues for Determination:

1. Was the primary judge entitled to fix a lump-sum costs order without evidence of the work done or hourly rates?
2. How should the Court determine “solicitor and client” costs under Division 2 of the Rules?
3. What constitutes a reasonable rate and reasonable amount for solicitor and client costs under r 12.47 and Schedule 1 of the Division 2 Rules?
4. Should costs orders in family law matters reflect market rates or remain anchored to the Division 2 scale?

Rule (Law):

1. s 114UB Family Law Act 1975 (Cth) – Each party bears their own costs unless the Court finds circumstances justifying otherwise, having regard to conduct, financial position, offers to settle, and other relevant factors.
2. r 12.17–12.47 Family Law Rules 2021 (Cth) – Define and regulate bases for costs:

• Party and party: “necessary or proper” costs.
• Solicitor and client: “reasonable” costs as proved by the claimant.
• Indemnity: “all costs reasonably incurred” unless shown otherwise.

1. Schedule 1 (Division 2 Rules) – Sets the hourly rate ($301.22) and itemised lump sums for hearings and preparation.
2. Precedents:

• House v The King (1936) 55 CLR 499 – Costs discretion must be exercised judicially.
• Sfakianakis & Sfakianakis (2019) 59 Fam LR 419 – Indemnity costs are not a “blank cheque.”
• Bouras v Grandelis (2005) 65 NSWLR 214 – “Solicitor and client” costs must be “reasonable” and the onus lies on the claimant.
• Hazan v The Manager, Costs Assessment [2023] NSWSC 1587 – Even diligent legal work may be “overworked” and unreasonable.

Application (Analysis):

1. Evidentiary Failure at First Instance

The Court held that the respondent’s solicitor had failed to provide any itemised bill, costs agreement, or evidence of the time spent. Justice Riethmuller emphasised that a short-form bill of costs is standard in other jurisdictions and that failing to supply one left the primary judge without an evidentiary basis.

“The process of dividing the total amount sought in half… was not sufficient to convert the bare claim into an evidentiary basis for the finding”.

The absence of proof meant the costs order was arbitrary and had to be set aside.

2. Determining Reasonable Solicitor and Client Rates

Justice Riethmuller provided a comprehensive comparison of national costs scales. He found that while Division 2’s scale ($301.22/hr) was intended for typical family law cases, market evidence supported a reasonable rate of $450/hr for solicitor and client costs — a 50% uplift reflecting realistic private billing rates across jurisdictions.

The Court noted:

• Federal Court scale: up to $780/hr.
• Victorian Supreme Court scale: $450–$900/hr.
• WA Family Court: $352–$572/hr.
• Legal Aid: ~$195/hr (not a realistic market comparator).

This analysis established a benchmark rate for assessing “reasonable” solicitor and client costs where evidence is lacking.

3. Operation of the Division 2 Scale of Costs

The Division 2 scale was designed for efficiency and predictability, providing standard itemised fees for preparation, daily hearings, and advocacy loadings.

Justice Riethmuller demonstrated how these could be used to calculate costs transparently:

Two-thirds of that sum was then uplifted by 50% (reflecting solicitor and client rates) and preparation time was increased by 20% to account for additional complexity.

4. Judicial Reasoning and Proportionality

Justice Riethmuller underscored that costs orders in family law must remain proportionate to the financial stakes and parties’ capacities, citing Family Law Act s 95(2)(e) and Central Practice Direction, Schedule A.

He warned against inflated or speculative costs claims:

“Family law litigants are not sophisticated consumers… there must be real regard to the repeated statements requiring costs to be fair, reasonable, and proportionate”.

5. Outcome and Re-Exercise of Discretion

The Court re-exercised the discretion and fixed:

• $64,685.98 for the substantive proceedings; and
• $1,674.69 for the costs of the costs application (half of the Division 2 party/party rate).

Judgment:

Appeal allowed.

The primary judge’s order was varied to reflect the recalculated lump-sum costs consistent with the Division 2 scale and reasonable solicitor/client rates.

Reasoning:

• The primary judge had no evidentiary foundation for fixing costs.
• Division 2 scales are not “arbitrary” but a structured, equitable benchmark.
• Solicitor and client rates must be proven reasonable by the party claiming them.
• The Court must protect against disproportionate legal expenditure and uphold fairness in costs assessments.

Precedents Relied On:

• House v The King (1936) 55 CLR 499
• Sfakianakis & Sfakianakis (2019) 59 Fam LR 419
• Bouras v Grandelis (2005) 65 NSWLR 214
• Hazan v The Manager, Costs Assessment [2023] NSWSC 1587
• Fountain Selected Meats v International Produce Merchants (1988) 81 ALR 397

Take-Home Lesson:

The Division 2 costs scale provides an essential baseline for family law costs, but solicitor and client costs must reflect reasonable market rates supported by evidence. Courts will not accept arbitrary or inflated lump sums. Practitioners must ensure costs are proportionate, transparent, and substantiated — or risk judicial recalibration.

In Verber & Verber [2025] FedCFamC1A 240, a complex intersection of legal professional privilege, procedural fairness, and the right to inspect court records came before the Full Court of the Federal Circuit and Family Court of Australia (McClelland DCJ, Riethmuller & Kari JJ). The husband, his brother, and a family trust sought to overturn an order permitting the wife to inspect limited documents from prior family law proceedings involving the husband’s parents. The appellants argued that the wife’s access would exploit privileged information misused in earlier litigation. The Full Court dismissed the appeal, finding no evidence that the inspection would breach privilege or amount to an abuse of process.

This case provides critical guidance on Rule 15.13 of the Family Law Rules 2021 (Cth) and underscores that privilege cannot be used to shield relevant evidence where no actual misuse of confidential communications can be shown.

Facts and Issues:

• The wife applied under r 15.13 to inspect affidavits and responses filed by the husband in two prior proceedings—property settlement disputes between his parents.
• She alleged the husband had previously sworn that he controlled and owned all family assets, contradicting his position in her current property settlement claim.
• The husband’s mother in those earlier proceedings had improperly accessed privileged communications from the husband’s father’s legal files, gaining a “forensic advantage” as found in Venter & Venter (No 6) [2024] FedCFamC1F 94.
• The appellants (husband, brother, and trustee company) contended that the wife’s access would perpetuate misuse of privilege-tainted material and undermine the integrity of justice.
• The primary judge allowed the inspection, limited to the husband’s own filed documents, finding the wife had a “proper interest” in potential inconsistent statements.

The appellants appealed, claiming:

1. The order was not appealable;
2. The primary judge failed to protect privilege and procedural fairness;
3. The ruling permitted a “fishing expedition” by the wife.

Issues:

1. Whether the inspection order under r 15.13 was an appealable order.
2. Whether the primary judge erred in permitting inspection where prior proceedings involved misuse of privileged material.
3. Whether the order breached the appellants’ rights to legal professional privilege or amounted to an abuse of process.
4. Whether the wife’s inspection request was “fishing” and lacked forensic purpose.

Rule (Law):

• Family Law Rules 2021 (Cth) r 15.13: Allows inspection of court records by a person with a “proper interest,” subject to limits and safeguards.
• Legal Professional Privilege: A substantive rule protecting confidential lawyer–client communications (Grant v Downs (1976) 135 CLR 674; Glencore International AG v Commissioner of Taxation (2019) 265 CLR 646).
• Appellate Standards:
• House v The King (1936) 55 CLR 499 — discretionary decisions reviewed for legal, factual, or reasoning error.
• Warren v Coombes (1979) 142 CLR 531 — non-discretionary findings reviewed for correctness.
• Abuse of Process: Misuse of court procedures that undermines public confidence (Rogers v The Queen (1994) 181 CLR 251).
• “Real Risk” Test: For restraining use of privileged information—future misuse must be a real and identifiable risk (Prince Jefri Bolkiah v KPMG [1999] 2 AC 222).
• Fishing Expeditions: Permissible if sought for a legitimate forensic purpose (Oates & Q (2010) FLC 93-451; Graham v Colonial Mutual Life Assurance Society Ltd (2013) 216 FCR 458).

Application (Analysis):

1. Appealability of the Order

The Court held that the order under r 15.13 was appealable, as it was an “operative judicial act” determining rights over inspection of court records—an anterior procedural step, not a mere ruling. The order affected substantive rights and, if wrongly made, would cause irreversible harm (disclosure of material).

2. Privilege and Abuse of Process

The Court reaffirmed that privilege is an immunity, not a weapon. The appellants failed to demonstrate that the husband’s affidavits or responses incorporated or relied on privileged communications.

“There is no evidence that the documents filed by the husband disclose privileged information (directly or indirectly)”.

Further, Carew J in Venter (No 6) had found misuse by the husband’s mother’s lawyers but made no orders sealing or striking out the husband’s filings, indicating no continuing taint. Thus, the Court rejected the argument that inspection would amount to an abuse of process.

3. Proper Interest and Forensic Purpose

The wife’s stated purpose—to compare the husband’s previous sworn statements about asset ownership—was legitimate and fell squarely within r 15.13(5)(a)–(b). The Court found this was not “fishing” but a targeted forensic inquiry:

“The wife has demonstrated it is material with a real forensic purpose and that it is ‘on the cards’ that the material will assist her case”.

4. Discretion and Standard of Review

The determination that the wife had a “proper interest” was not discretionary (only one correct outcome existed), but the extent of permitted inspection was discretionary. Even applying House v The King, no appellable error was identified—the primary judge considered all relevant factors, including security, proportionality, and fairness.

Judgment:

The Full Court unanimously dismissed both the appeal and cross-appeal, holding that:

1. The inspection order was appealable, but correctly made.
2. No real or evidentiary link existed between the privileged material and the husband’s own filings.
3. The wife’s purpose was legitimate and not abusive.
4. Legal professional privilege cannot serve as a blanket bar to discovery absent a clear causal nexus.

Costs of $45,360 were awarded against the appellants jointly.

Reasoning:

The Court’s reasoning rested on maintaining balance between privilege and transparency:

• Privilege protects confidential legal advice, not the facts themselves.
• Without proof of causation or ongoing misuse, inspection cannot be denied on speculation.
• The integrity of justice requires that courts do not allow privilege claims to obscure inconsistent sworn evidence.

By distinguishing between “tainted evidence” and “tainted process,” the Court reinforced that historical breaches by unrelated parties do not automatically contaminate subsequent proceedings.

Precedents Relied On:

• Grant v Downs (1976) 135 CLR 674
• Glencore International AG v Commissioner of Taxation (2019) 265 CLR 646
• Prince Jefri Bolkiah v KPMG [1999] 2 AC 222
• Rogers v The Queen (1994) 181 CLR 251
• House v The King (1936) 55 CLR 499
• Warren v Coombes (1979) 142 CLR 531
• Oates & Q (2010) FLC 93-451

Take-Home Lesson:

Privilege is a shield, not a sword. It cannot be stretched to block legitimate forensic inquiries where no misuse or causal link exists. Courts will protect privilege narrowly—balancing confidentiality with fairness and truth-seeking. Allegations of “taint” must be proven, not presumed.

In Takenaka & Maddox [2025] FedCFamC1A 243, Justice Campton of the Federal Circuit and Family Court (Division 1) dismissed an appeal by a self-represented father who sought to overturn extensive parenting orders. The appeal arose from findings that the father engaged in a sustained, four-year campaign of intimidation, threats, and coercive control against the mother. Despite voluminous filings and claims of judicial error, the Court upheld the trial judge’s assessment that the father’s domineering behaviour and lack of insight rendered shared care unsafe. The decision underscores the judiciary’s increasing recognition of coercive control as family violence under s 4AB of the Family Law Act 1975 (Cth) and its cumulative impact on parenting capacity and the child’s best interests.

Facts and Issues:

• The parents separated in 2021 after the birth of their child, who suffers from selective mutism and anxiety.
• The father repeatedly accused the mother of mental illness, reporting her to hospitals, police, and child services despite clinical evidence that her postpartum depression had fully resolved.
• The father removed the child from the mother’s care without consent, made repeated false welfare calls, and attempted to isolate the mother from friends and supports.
• The primary judge found that the father’s conduct—through hundreds of messages, threats, and public disparagement—constituted a pattern of coercive control, satisfying the definition of family violence under s 4AB.
• Parenting orders granted the mother sole parental responsibility, imposed strict restraints on the father’s communications and access, and prohibited overnight stays in his “share house” until he obtained safe accommodation.
• On appeal, the father raised 11 grounds, including allegations of factual error, denial of procedural fairness, improper reliance on the Family Report, and overreach in orders restricting his access, travel, and communication.

Issue:

Whether the primary judge erred in law, fact, or discretion—particularly in:

1. Finding that the father’s conduct constituted family violence;
2. Granting the mother sole parental responsibility; and
3. Imposing restrictions on contact, overnight stays, and travel that the father claimed were excessive or procedurally unfair.

Rule (Law):

• Appellate Intervention: As established in House v The King (1936) 55 CLR 499, appellate courts will not interfere unless the primary judge made an identifiable error of law, overlooked a material fact, or reached an outcome that was plainly unjust.
• Family Violence Definition: s 4AB Family Law Act 1975 (Cth) defines family violence broadly to include coercive, controlling, or intimidating behaviour causing a family member to fear for their safety.
• Parental Responsibility and Best Interests: Under s 60CA and s 61DA, the child’s best interests are paramount; the presumption of equal shared responsibility is rebutted where family violence is found.
• Discretionary Nature of Parenting Orders: In CDJ v VAJ (1998) 197 CLR 172 and Kellerman & Kellerman [2024] FedCFamC1A 126, the High Court affirmed that different judges may reach opposing but reasonable conclusions in parenting cases.
• Procedural Fairness: The Kioa v West (1985) 159 CLR 550 line of authority requires that parties be given an opportunity to be heard, but courts may limit irrelevant or repetitive evidence.

Application (Analysis):

1. Family Violence and Coercive Control

Justice Campton upheld the trial judge’s cumulative assessment that the father’s behaviour—harassment, threats, misuse of institutions, and intimidation—constituted family violence. The father’s repeated false reports about the mother’s mental health were designed to undermine her parenting and demonstrated domineering control and lack of insight. The Court confirmed that coercive control, even absent physical harm, falls squarely within the statutory definition of violence under s 4AB.

2. Parenting Capacity and Sole Parental Responsibility

The trial judge found the father’s parenting capacity “significantly compromised” by his aggression, unsafe living environment, and failure to engage with the child’s selective mutism treatment. Justice Campton agreed that these findings were reasonably open on the evidence. The discretion to award sole parental responsibility to the mother was properly exercised given the father’s lack of respect and insight, consistent with Rafferty & Spencer (2016) FLC 93-710.

3. Overnight Care and Accommodation Restrictions

The appellant’s challenge to being barred from overnight care in his share house failed. The Court accepted that the father’s decision to rent rooms to male tenants and prioritise income over safety justified the restriction. As the judgment observed, “the father’s share house arrangement was unsafe for the child” and inconsistent with her welfare needs.

4. Procedural Fairness and New Evidence

Although the Court allowed two additional emails into evidence, Justice Campton found no procedural unfairness—holding that most documents were available at trial and that the father had full opportunity to cross-examine witnesses. The complaint of bias against the ICL was dismissed as unsubstantiated.

5. Appellate Standards and Discretion

Applying Fox v Percy (2003) 214 CLR 118 and Lee v Lee (2019) 266 CLR 129, the Court reiterated that appellate intervention in parenting discretion is limited. The appeal attempted to “re-try” factual disputes rather than identify a clear legal error, contrary to House v The King.

Judgment:

• Application in Appeal: Allowed in part to admit two documents (emails).
• Substantive Appeal: Dismissed in full.
• Costs: The father ordered to pay $1,045 to the mother and $20,000 to the Independent Children’s Lawyer.

Justice Campton concluded that the primary judge’s 404-paragraph judgment reflected a careful, evidence-based analysis and that none of the father’s claims of procedural or factual error were made out.

Reasoning:

The Court found the father’s grounds “a gallimaufry of appellate terminology” — a confused mix of claims lacking legal substance. Justice Campton emphasised that appellate courts will not “hunt through” vague grievances or reweigh credibility findings. The trial judge was entitled to prefer the mother’s credible, child-focused evidence and the family report’s cautionary recommendations.

In line with CDJ v VAJ and Pickford & Pickford [2024] FedCFamC1A 249, the appellate court affirmed that different judges may reasonably reach differing but valid conclusions about the same facts.

Take-Home Lesson:

This case reaffirms that coercive control is family violence and will decisively influence parenting outcomes. A parent’s fixation on control, litigation, and personal vindication—rather than the child’s emotional safety—will undermine claims for shared care. Appeals that merely re-argue factual disputes or misapply appellate standards will fail. Respectful co-parenting, insight, and evidence—not volume or aggression—determine outcomes.

In Conner & Conner (No.3) [2025] FedCFamC1A 235, Justice Schonell of the Federal Circuit and Family Court (Division 1) was asked to expedite an appeal concerning interim parenting orders. The mother (appellant) alleged that the child was at risk of harm in the father’s care and sought urgent consideration of her appeal. The Court, however, refused to grant expedition, finding that the appeal—already listed within three months—was effectively being fast-tracked and that no compelling basis existed to prioritise it over other pending appeals.

Facts and Issues:

• The parties were engaged in protracted and highly conflictual parenting litigation under Pt VII of the Family Law Act 1975 (Cth).
• The father had been granted sole parental responsibility and the child was ordered to live with him following the mother’s repeated frustration of prior orders.
• The mother sought to expedite her appeal against these interim parenting orders, asserting that the child was at risk of harm in the father’s care.
• The appeal was already listed for hearing in February 2026, less than three months away.
• The central issue was whether the circumstances justified expedition — i.e., should this appeal take precedence over others awaiting hearing.

Issue:

Whether the Court should expedite the appeal under s 94(2D)(j) of the Family Law Act 1975 (Cth), given the appellant’s assertion that the child was at risk of harm in the respondent’s care.

Rule (Law):

• Under s 94(2D)(j) of the Family Law Act 1975 (Cth) and r 15.06 of the Family Law Rules 2021 (Cth), the Court has discretion to expedite an appeal where circumstances justify priority over others.
• Justice Schonell adopted the criteria set out in Villa & Villa [2025] FedCFamC1A 214, which itself applied Aldridge J’s summary in Gallea & Gallea [2020] FamCAFC 322 [6]:

Factors include whether the applicant has acted promptly, whether expedition would prejudice the respondent, and whether there are circumstances warranting priority to the possible detriment of other cases.

• The ultimate question: Should this appeal be heard before others already waiting?

Application (Analysis):

• Promptness:
• The appellant acted quickly—filing her notice of appeal within four days of the original order and her application for expedition within three more days.
• Urgency:
• Despite the appellant’s claims of risk to the child, she had previously consented to orders for unsupervised time and had unsuccessfully appealed similar interim decisions. Justice Schonell noted that the allegations did not introduce any new or compelling evidence.
• Prejudice and Priority:
• The appeal was already listed for February 2026, which the Court regarded as a de facto expedition. Granting further priority would unfairly delay other litigants also seeking urgent relief.
• Best Interests Context:
• While parenting matters are inherently urgent, the Court reaffirmed that procedural fairness and judicial efficiency require a balance between urgency and the orderly progression of appeals.

Judgment:

The Court dismissed the Application in an Appeal. Justice Schonell held that there was no extraordinary urgency or fresh evidence of risk justifying further acceleration. The February hearing date already constituted sufficient expedition.

“There is nothing in the appellant’s affidavit or submissions that is so compelling as to call for this appeal to be heard in preference to that of others.”

Reasoning:

Justice Schonell’s reasoning centered on judicial economy and proportionality:

1. The appeal was already being heard within an expedited timeframe.
2. No new evidence supported the mother’s claims of imminent risk.
3. The Court must avoid queue-jumping, where one party’s anxiety or repeated filings displace other urgent family matters.
4. The mother’s history of non-compliance and litigation escalation (three appeals over interim orders) undermined claims of genuine urgency.

Precedents Relied On:

• Villa & Villa [2025] FedCFamC1A 214
• Gallea & Gallea [2020] FamCAFC 322

These decisions clarified the threshold for expedition and guided the Court’s balancing of urgency against procedural fairness to other parties.

Take-Home Lesson:

Even in emotionally charged parenting disputes, urgency must be demonstrated, not declared. The Court will not grant priority without clear, objective evidence of imminent harm or injustice. Filing quickly is commendable—but without new or exceptional circumstances, an appeal already listed within a few months will not be “re-expedited.”

In Provenza & Provenza (No 4) [2025] FedCFamC1A 232, the Federal Circuit and Family Court of Australia (Division 1) delivered a sharp procedural reminder: even when family violence findings are damning, judicial power must remain within statutory bounds. The father’s appeal succeeded in part—not because the trial judge erred in substance, but because she made injunctions under s 68B of the Family Law Act 1975 (Cth) that conflicted with an existing State family violence order (FVO). Justice Austin found that this overlap breached s 114AB of the Act, rendering three injunctions invalid. The case underscores the limits of concurrent federal and state jurisdiction in family violence protection.

Facts and Issues

• The parents separated in June 2022.
• The mother held a final Queensland family violence order (FVO) against the father protecting herself and two of the three children, operative until July 2027.
• The trial judge, finding serious risk from the father’s conduct, made parenting orders granting the mother sole decision-making, the children to live with her, and additional injunctions restraining the father from any contact with the mother or the younger children.
• However, those injunctions mirrored or overlapped the existing State FVO terms.
• The father appealed, alleging jurisdictional and legal error among other discretionary grounds.

Core Issue:

Whether the primary judge had power to make federal injunctions under s 68B when a State FVO covering the same persons and conduct was already in force.

Law

Key provisions of the Family Law Act 1975 (Cth):

• s 68B: permits injunctions for the personal protection of a child, parent, or other person.
• s 114AB: restricts the use of federal injunctions where a State or Territory law already provides protection — the federal court cannot duplicate or overlap orders if a State FVO is active and operable.
• reg 7 of the Family Law Regulations 2024 (Cth): identifies the Domestic and Family Violence Protection Act 2012 (Qld) as a prescribed State law for the purpose of s 114AB.

Precedents relied on:

• Phillips & Hansford (No 2) (2019) FLC 93-917; SCVG & KLD (2014) FLC 93-582 – scope of judicial reasoning on s 60CC factors.
• Coulton v Holcombe (1986) 162 CLR 1 – appellate principle: a party is bound by the way they conduct their case.
• Metwally v University of Wollongong (1985) 60 ALR 68 – cannot raise new arguments on appeal.

Application of Law to the Facts

Justice Austin found that the trial judge had no power to make injunctions under s 68B that overlapped the Queensland FVO. Because the mother had already obtained a final State order, the Court’s jurisdiction was constrained by s 114AB(2) — the federal power could not operate concurrently over the same subject matter.

Specifically:

• Order 6 restrained the father from communicating with the youngest child or attending the mother’s home or workplace.
• Order 7 restrained communication with the middle child.
• Order 8 prohibited communication with the mother except in emergencies.

Each of these orders conflicted or duplicated existing FVO terms, making them ultra vires. Justice Austin emphasised that the error was curable by simply discharging the offending orders, without disturbing the remainder of the judgment.

All other grounds — including claims of bias, lack of reasons, and disproportionality — were dismissed as without merit. The appellate court confirmed the trial judge’s substantive findings of unacceptable risk, family violence, and impaired parenting capacity were sound and supported by evidence.

Judgment and Reasoning

The appeal was allowed in part.

Justice Austin:

“The provisions of s 114AB(2) of the Act deprived the primary judge of power to make the injunctions comprised by Orders 6, 7 and 8, as they either conflict or overlap with the terms of the operable State family violence order.”

Accordingly:

• The original Orders 1–22 (dated 5 August 2025) were set aside.
• The subsequently published orders (1–21) were confirmed as the valid final orders, minus Orders 6–8, which were discharged.
• No costs were ordered.

The partial success did not disturb the overall parenting outcome — the children remained in the mother’s care, with the father’s contact restricted due to risk — but it corrected the jurisdictional overreach of duplicative injunctions.

Why the Father “Won” This Ground

The father’s limited victory was purely technical, but legally significant.

• He demonstrated the trial judge acted without power, not merely erred in discretion.
• This form of error — jurisdictional excess — cannot be cured by consent or hindsight.
• It underscores that federal parenting injunctions cannot co-exist with State family violence orders covering the same protective ground.
• The correction preserved the hierarchical integrity between State and Commonwealth systems under s 114AB.

Take-Home Lesson

Even in high-risk parenting cases, the Family Court’s protective reach must respect the federal-state boundary. When a State family violence order already exists, duplicate injunctions are beyond power, no matter how well-intentioned.

This case illustrates that:

• Judges must check for operative State orders before issuing federal injunctions.
• Lawyers should identify and raise s 114AB issues early to prevent jurisdictional conflict.
• A technical win on power can occur even when the substantive appeal is lost — but it will not change the parenting outcome unless the underlying findings are wrong.

📘 Summary Table

IssueFindingResultFederal injunctions overlapping State FVOContrary to s 114AB – beyond powerOrders 6–8 dischargedRisk and parenting findingsSound and evidence-basedAppeal dismissedCostsNo order as to costsEach bears own

🧭 Key Precedent Established

Federal judges must avoid duplicating State protective orders — even if the federal orders appear more comprehensive. The error is jurisdictional, not discretionary.

In Walshe & Walshe [2025] FedCFamC1A 231, Justice Campton delivered an important appellate decision clarifying the powers and responsibilities of family judges when assessing risk in interim parenting disputes. The Court confirmed that, even when evidence is untested or conflicting, judges are not prohibited from making factual determinations necessary to protect children. The decision affirms the judiciary’s duty to act cautiously but decisively in child-related matters — particularly where allegations of sexual abuse or family violence arise.

Facts and Issues

The mother alleged that the father posed an unacceptable risk to their daughter (born 2019) due to sexual abuse, family violence, and emotional harm. Police obtained a provisional ADVO protecting the child after she disclosed that her father had touched her genital area while wiping her after using the toilet.

The father sought professionally supervised time with the child, claiming the mother had influenced her and that any disclosures were “innocuous.” The Independent Children’s Lawyer (ICL) supported a limited reintroduction of contact. The mother opposed, seeking dismissal of the father’s application.

The primary judge, considering the gravity of risk and the absence of evidence that reintroduction would ensure the child’s safety, refused to reinstate contact. The father appealed, arguing the judge erred in law by making “findings on contested facts” at an interim hearing without tested evidence.

The key issue before Justice Campton was:

Can a family court judge make factual determinations at an interlocutory stage when evidence has not been tested through cross-examination?

Application of Law to the Facts

Justice Campton rejected the father’s argument, holding that a judge is not prohibited from making factual determinations at an interlocutory stage if necessary to assess unacceptable risk and ensure a child’s safety.

Drawing on Pilot & Silver [2022] FedCFamC1A 191 and Banks & Banks (2015) FLC 93-637, His Honour noted that although findings on contested facts should be circumspect, evidence “must not be ignored simply because it is disputed”.

The Court reaffirmed the two-step test from Isles & Nelissen (2022) FLC 94-092:

1. Determine whether conduct allegations are established to the civil standard; and
2. Assess whether the proven or possible conduct creates an unacceptable risk of harm.

Importantly, s 102NJ of the Family Law Act 1975 (Cth) expressly empowers the Court to “make findings of fact in child-related proceedings at any stage”, confirming the Court’s obligation to weigh credible evidence even where full testing is not yet possible.

Thus, the primary judge was entitled — indeed, required — to make interim factual assessments to decide whether supervised contact was safe.

Judicial Reasoning and Analysis

Justice Campton’s reasoning emphasised the protective function of interim parenting orders:

• The Court must not “ignore credible evidence” merely because it is contested.
• Determining risk at the interlocutory stage involves a conservative evaluation of probabilities and potential harm.
• Judges must weigh both the benefit of contact and the risk of harm, even if the full factual matrix awaits trial.

The primary judge’s detailed reasoning — acknowledging the limits of interim evidence while evaluating consistent reports from the child, daycare staff, GP, and police — demonstrated “circumspect engagement” with the statutory duty to safeguard children.

Justice Campton held that the father’s complaint was “hollow” because the trial judge had not made definitive findings of guilt or abuse, but rather weighed the available evidence to determine that it was not safe to reintroduce time.

The appeal was dismissed, with costs fixed at $13,143.99 against the father.

How a Judge Can Make Factual Determinations at an Interim Stage

This decision is now a leading authority confirming that:

• Section 102NJ expressly empowers courts to make interim factual findings in child-related proceedings to assist in determining disputes.
• Judges are not confined to uncontested facts; they may engage with contested evidence when safety demands it.
• Findings are not final — they are “conservative assessments” to manage immediate risks pending trial.
• The obligation under ss 60CC and 60CG (Family Law Act 1975 (Cth)) to ensure safety means a judge must evaluate risk, even without cross-examination.
• As per Pilot & Silver and Fowler & Northwood (2022) FLC 94-114, ignoring credible evidence simply because it is disputed would be a failure to exercise jurisdiction.

In short, a judge’s duty to protect outweighs the procedural constraint of untested evidence.

Take-Home Lessons

✅ 1. Safety First, Facts Later: Interim hearings are not mini-trials, but courts must still engage with credible evidence to assess risk.

✅ 2. Section 102NJ confirms judicial power to make findings mid-proceeding.

✅ 3. Credibility ≠ Certainty: Disputed evidence may still be weighed for interim protection.

✅ 4. Appellate scrutiny is limited: Unless a judge’s interim reasoning is illogical or ignores statutory mandates, appeals will fail.

✅ 5. Risk assessment is evidence-based, not discretionary: The Court must balance probabilities and potential harm with great caution.

Cited Authorities

• Walshe & Walshe [2025] FedCFamC1A 231
• Pilot & Silver [2022] FedCFamC1A 191
• Isles & Nelissen (2022) FLC 94-092
• Banks & Banks (2015) FLC 93-637
• Kellerman & Kellerman [2024] FedCFamC1A 126
• Fowler & Northwood (2022) FLC 94-114
• Family Law Act 1975 (Cth) ss 60CC, 60CG, 102NJ

The Federal Circuit and Family Court of Australia (Division 1) delivered a rare and scathing rebuke of solicitor conduct in Fing & Ma (No 2) [2025] FedCFamC1A 230. The Full Court found that the solicitor, Mr AQ of Aston Legal Group, had departed from objective professional judgment and acted under emotional and religious influence in urging a grieving client to pursue a hopeless appeal based on her late father’s suicide note. The solicitor was ordered to personally pay over $97,000 in costs on an indemnity basis — a stark reminder that legal advocacy must remain dispassionate, evidence-based, and client-centred.

Facts and Issues

The case stemmed from a failed property appeal brought by the estate of a deceased man (“the deceased”), who had alleged that properties in Australia were held on trust for him. After the deceased’s suicide, his daughter was substituted as the appellant and continued the appeal under the encouragement of her father’s solicitor, Mr AQ.

The Full Court dismissed the appeal in September 2025, finding the arguments baseless and repetitive, and later heard competing costs applications. The respondents sought costs against both the appellant and her solicitor, arguing that the solicitor’s conduct — marked by emotional manipulation, poor legal reasoning, and refusal to heed offers of compromise — had unreasonably prolonged a hopeless appeal.

The issues were:

1. Whether the solicitor’s conduct amounted to “improper or unreasonable conduct” under r 12.15 of the FCFCOA (Family Law) Rules 2021; and
2. Whether the solicitor should personally bear the respondents’ and the appellant’s costs.

Application of the Law to the Facts

The Full Court, citing Cansdall & Cansdall (2021) FLC 94-052 and White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169, reiterated that costs orders against solicitors require more than poor judgment — they require conduct that is unreasonable, improper, or a serious dereliction of duty.

Here, Mr AQ’s actions met that threshold. His advice was not based on law or evidence, but on emotion, sentiment, and misplaced conviction:

• He told the appellant there was an “85 % chance of success” despite overwhelming contrary authority.
• He dismissed her concern about costs as “silly and ridiculous” and assured her it was “very, very, very, very rare” an executor would be personally liable.
• He invoked religious passages, writing, “Let justice flow like a river… since your father committed suicide, I now believe 100 % that the money belonged to him.”
• He rejected settlement offers that would have avoided further expense, framing them as “threats” by “Caucasian lawyers” and urging her to “finish the race” for her late father.

This, the Court held, showed a loss of objectivity and a crusading mindset, with the solicitor acting on “irrelevant and emotive considerations” rather than legal reasoning.

Analysis of the Judgment and Reasoning

The Full Court (Aldridge, Campton & Christie JJ) held that:

• The solicitor had “significantly departed from providing objective, dispassionate legal advice”.
• His advice was “extraordinary” and “coloured by emotion and religious sentiment” at a time when his client was in acute grief.
• His encouragement to pursue the appeal was “unreasonable in the sense used in the Rules” and caused substantial wasted costs.
• The appellant herself acted reasonably, having relied on her solicitor’s misguided assurances.

Accordingly, the Court ordered Mr AQ to personally pay:

• $72,249.10 – first and second respondents’ costs (indemnity basis);
• $20,266.90 – third respondent’s costs (fixed sum); and
• $4,727.53 – the appellant’s costs of responding to the costs application.

The Court relied on Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 to justify indemnity costs in cases of wilful disregard of law, emotional manipulation, or imprudent rejection of settlement offers.

Take-Home Lessons

✅ 1. Emotion has no place in legal advice. Lawyers must maintain objectivity, even when a case involves grief or tragedy.

✅ 2. Duty to warn about costs is paramount. Failing to properly advise a client — especially a vulnerable one — about personal exposure is professional negligence in spirit, if not in law.

✅ 3. Faith or personal conviction cannot replace law and evidence. The Court condemned the solicitor’s reliance on Biblical passages as evidence of impaired judgment.

✅ 4. Costs orders against lawyers are rare but real. Improper conduct can result in personal liability — here, nearly $100,000.

✅ 5. Professional detachment safeguards justice. The solicitor’s “crusade” blurred advocacy with belief, undermining both client protection and the integrity of the legal system.

Cited Authorities

• Fing & Ma (No 2) [2025] FedCFamC1A 230
• Cansdall & Cansdall (2021) FLC 94-052
• White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169
• Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
• Forsyth v Sinclair (No 2) (2010) 28 VR 635
• Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155

How a father’s six-figure legal bill turned into a cautionary tale about fairness, restraint, and the limits of costs recovery in family law.

In Langley & Mirza (No 2) [2025], Justice Austin delivered a sharp reality check for litigants pursuing large-scale cost recoveries in family law. Despite the father spending $252,235.91 in actual legal costs, he walked away with only $10,000 in costs on appeal — a stark illustration that family law costs are governed by proportionality, fairness, and reasonableness, not the magnitude of one’s legal bills.

The case demonstrates that even where a party “wins,” discretion and equity control the outcome — not accounting spreadsheets or punitive motives.

Facts and Issues

After a bitterly contested property trial, the father sought to recoup his substantial legal expenditure, applying for a costs order of $252,235.91 (actual) or alternatively $206,262.38 (party/party).

The mother opposed, arguing both sides had contributed to the protracted dispute. The trial judge agreed, fixing costs at $77,080.68, representing half of each party’s combined outlays — a rough, equitable division.

The mother appealed on five grounds:

1. The primary judge allegedly used indemnity rates despite rejecting indemnity costs.
2. She was denied procedural fairness, not being consulted on the numerical calculation.
3. Failure to consider all relevant Family Law Act s 117(2A) factors.
4. Overlooked one of her earlier Costs Notices (2021).
5. Inadequate reasons for fixing, rather than assessing, costs.

The key issue became whether the trial judge’s approach miscarried in law or principle — and whether the outcome was manifestly unfair.

Application of Law to the Facts

Justice Austin reaffirmed the well-established restraint on appellate interference: a costs discretion is “not to be lightly disturbed” unless there is error of principle or procedural unfairness.

• The judge found that no indemnity order was made — the trial judge had merely used each party’s actual legal spend as a “common baseline” for fairness, avoiding distortion that would occur if only one side’s lower party/party costs were used.
• Procedural fairness was not denied; both parties made extensive written submissions, and the Court was not obliged to reopen for discussion of raw figures.
• The s 117(2A) factors were expressly cited; the judge was not required to list each exhaustively.
• The alleged overlooked Costs Notice was never in evidence, and therefore irrelevant.
• Fixing costs, rather than ordering a protracted assessment, was consistent with the overriding purpose of efficiency under r 1.04 of the FCFCOA (Family Law) Rules 2021.

Analysis of the Judgment and Reasoning

Justice Austin dismissed the mother’s appeal entirely — but notably, while the father succeeded, his reward was symbolic rather than substantial.

His Honour awarded the father just $10,000 in appeal costs, expressly noting the appeal was “short and straightforward” and did not justify significant reimbursement.

The decision reinforced three principles:

1. Winning doesn’t guarantee full reimbursement.
2. Even after prevailing on all issues, the father’s recovery — less than 4% of his total legal spend — underscored that family law is about fairness, not restitution.
3. Fairness outranks financial precision.
4. The trial judge’s “half-the-combined-costs” approach was upheld as equitable and proportionate.
5. Efficiency trumps escalation.
6. Justice Austin commended the pragmatic choice to fix costs to avoid yet another dispute, preserving judicial resources and discouraging excessive litigation.

Take-Home Lessons

💡 1. Spending more doesn’t mean you’ll recover more.

Family law’s discretionary nature means cost orders are guided by fairness, not the scale of expenditure.

💡 2. Costs appeals are a dead end unless there’s clear error.

Courts protect discretionary judgments from re-litigation.

💡 3. Efficiency and proportionality rule the day.

A $252,000 legal saga yielded a $10,000 outcome — a reminder that family law punishes overreach and rewards reasonableness.

💡 4. Fixing costs protects both parties from endless disputes.

The court’s focus is finality, not financial revenge.

Cited Authorities

• Langley & Mirza (No 2) [2025] FedCFamC1A 226
• Minister for Immigration v SZGUR (2011) 241 CLR 594
• SZBEL v MIMIA (2006) 228 CLR 152
• Family Law Act 1975 (Cth) s 117(2A)
• FCFCOA (Family Law) Rules 2021 (Cth) r 1.04

In Conner & Conner (No 2) [2025] FedCFamC1A 223, the Full Court of the Federal Circuit and Family Court of Australia reaffirmed a fundamental principle of appellate law — not every order is appealable. The mother’s attempt to appeal procedural directions relating to a psychiatric assessment was dismissed as incompetent because the orders did not determine any substantive rights. The Court’s reasoning underscores the distinction between procedural and final orders and the importance of understanding when an appeal properly lies.

Facts and Issues

• The parties married in 2019 and have one child (born 2021).
• Following separation in 2022, multiple interim parenting orders were made allowing the child to live with the mother and spend time with the father.
• On 20 May 2025, the trial judge ordered both parents to undergo psychiatric assessments.
• On 24 July 2025, further procedural orders were made requiring the mother to attend an interview, allowing the psychiatrist to use a psychologist for testing, and warning that if she failed to comply, the matter might proceed on an undefended basis.
• The mother appealed these orders, arguing they unfairly prejudiced her case.

Issues before the Full Court:

1. Were the July 2025 procedural orders capable of being appealed under the Family Law Act 1975 (Cth)?
2. Did the orders prejudice the mother’s substantive rights or determine her legal entitlements?
3. Should the appeal be dismissed as incompetent or futile?

Application of Law to Facts

The Full Court (Christie, Strum & Brasch JJ) found that:

• None of the challenged orders constituted a “judgment” under The Commonwealth v Mullane (1961) 106 CLR 166, because they were purely procedural and did not determine any rights.
• The orders simply facilitated the preparation of expert evidence for the forthcoming trial and did not cause legal prejudice.
• Order 11 — warning that the case could proceed undefended if the mother failed to attend — was not prescriptive or enforceable and thus was not appellable.
• Even if appealable, the appeal was futile, as the dates for compliance had already passed and the psychiatric assessment process had concluded.

The Court relied heavily on earlier appellate authorities:

• Yule v Junek (1978) 139 CLR 1 — procedural rulings not determining rights are not appealable.
• Beale & Harvie (2023) 69 Fam LR 294 and Fierro & Fierro [2022] FedCFamC1A 72 — reaffirming that case management or interlocutory steps are not subject to appeal.
• Reece & Reece [2011] FamCAFC 24 — futility principle: the Court will not hear an appeal if there is no practical utility in doing so.
• Lainhart & Ellinson (2023) FLC 94-166 — directions lacking prescriptive effect are not orders.

The Court also noted that procedural orders are contemplated by r 1.33 and r 10.27(2) of the Federal Circuit and Family Court Rules 2021 (Cth), which empower the Court to continue hearings where parties fail to comply with directions.

Judgment and Reasoning

• The Court refused leave to appeal and dismissed the appeal.
• The mother was ordered to pay Legal Aid Queensland $5,612.68 for the Independent Children’s Lawyer’s costs.

Judicial Reasoning:

1. Appeal Incompetent: The procedural nature of the orders meant there was no “decision” under s 36 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2. No Prejudice: The mother’s substantive rights were unaffected — she could still contest the psychiatric evidence at trial.
3. Futility: The timing of events rendered the appeal moot, as the psychiatric assessment had already occurred.
4. Overreach: The mother’s additional requests — such as excluding expert evidence or substituting treating practitioners — exceeded the appellate court’s remedial powers and were matters for the trial judge.

Take-Home Lessons

• Not all orders can be appealed. Only determinations that decide rights or cause prejudice are “judgments” for appeal purposes.
• Procedural fairness ≠ appealable error. Disagreement with case management decisions must usually be addressed at trial, not through appeal.
• Futility bars appeal. Even meritorious arguments fail if no practical remedy remains.
• Stay within appellate bounds. Appeals are not opportunities to reshape trial management or pre-empt evidentiary rulings.
• Costs follow failure. Frivolous or incompetent appeals may result in adverse costs orders, even against self-represented litigants.

In Mertz & Mertz (No 3) [2025] FedCFamC1A 222, the Federal Circuit and Family Court of Australia took an unprecedented stance on the misuse of Artificial Intelligence in family law litigation. The case serves as a cautionary tale for legal practitioners about the unverified use of generative AI in preparing submissions. When counsel submitted documents containing fake authorities and inaccurate case citations, the Full Court not only ordered costs against the appellant but also referred the lawyers involved to their respective professional conduct regulators. This decision sets a critical precedent on technological responsibility and professional ethics in modern advocacy.

Facts and Issues

• The appellant filed an appeal which was discontinued two days before the hearing.
• During preparations, the appellant’s legal team—comprising a solicitor and two barristers—used AI tools to generate a Summary of Argument and List of Authorities.
• The AI-generated material contained non-existent and misleading citations, which were later amended without clear explanation.
• The Court identified a lack of transparency and accountability in how the AI was used and questioned the supervision of junior staff.
• The respondent sought costs due to wasted preparation and requested disciplinary referral.

Key Issues:

1. Whether the use of AI-generated submissions containing false citations constituted professional misconduct.
2. Whether the appellant’s discontinuance warranted a party-and-party costs order.
3. What professional obligations arise from the use of AI in legal practice.

Application of Law to Facts

The Court referenced several key authorities and guidelines to frame its reasoning:

• Dayal [2024] FedCFamC2F 1166 — where a practitioner was referred to regulators for submitting AI-generated fake cases, establishing that lawyers must verify any material produced by AI.
• Helmold & Mariya (No 2) (2025) FLC 94-272 — warning that “reliance upon unverified research generated by AI has the capacity to confuse, mislead, and waste judicial time”.
• The Family Law Act 1975 (Cth) ss 114Q and 114UB were cited concerning confidentiality obligations and costs discretion.
• The Court also considered the Supreme Court of NSW Practice Note SC Gen 23 (2025) and the Supreme Court of Victoria AI Guidelines (2024) as persuasive ethical standards for AI use in litigation.

Applying these, the Full Court found:

• The extent and nature of AI use were unclear, and the practitioners failed in their duty of diligence and candour to the Court.
• The solicitor’s delegation to a paralegal, without adequate supervision or disclosure, breached professional standards.
• The AI usage risked breaches of confidentiality, privilege, and the Harman undertaking, given the potential exposure of non-public information to third-party AI tools.
• The appellant’s late discontinuance caused wasted costs and prejudice to the respondent, justifying an award of $36,955 in costs, plus $10,000 in additional costs for correcting the AI-related errors.

Judgment and Reasoning

The Court ordered:

1. The referral of all involved practitioners—Ms G (solicitor), Mr AX KC, and Mr AY—to their respective professional regulatory bodies for investigation.
2. A costs order against the appellant for $36,955 on a party-and-party basis, and a further $10,000 payable by Ms G personally for the AI issue.

Reasoning:

• The Court emphasized that AI cannot be used as a substitute for human judgment or verification.
• Practitioners remain personally responsible for every word submitted to the Court, regardless of technological tools employed.
• Ethical and professional obligations—accuracy, competence, honesty, and respect for confidentiality—cannot be outsourced to AI.
• The referrals were made not as punishment but to protect the integrity of the legal profession and ensure future guidance for AI governance in law.

Precedents and Authorities Cited

• Dayal [2024] FedCFamC2F 1166 (AI misuse and referral).
• Helmold & Mariya (No 2) (2025) FLC 94-272.
• Family Law Act 1975 (Cth) ss 114Q, 114UB.
• Supreme Court of NSW Practice Note SC Gen 23 (2025).
• Supreme Court of Victoria AI Guidelines (2024).

Take-Home Lesson

This case marks the first appellate-level rebuke of AI misuse by Australian family law practitioners. It underscores that:

• AI is not a research shortcut; unverified outputs can amount to professional misconduct.
• Lawyers must disclose AI usage, verify every citation, and safeguard confidentiality.
• Courts will sanction both the firm and individuals for negligence or lack of supervision in AI use.
• Transparency, accountability, and human oversight remain the cornerstones of ethical advocacy in the digital age.