Late Affidavit, No Chance to Reply: Why a Self-Represented Father's Parenting Review Was Sent Back

In Shumakov & Ankudinova [2026] FedCFamC1A 174, Christie J dealt with a self-represented father’s appeal from Division 2 orders made on a Review of interim parenting (and related) orders of a senior judicial registrar. The result: the appeal was allowed, the Application for Review and the father’s Application in a Proceeding were remitted for rehearing before a different judge, and the father received a costs certificate under s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) capped at $1,969.44 (Orders 1–3; [46], [49]–[50]). The important point is that procedural fairness is about the fairness of the hearing, not the fairness of the outcome ([32]). Where a represented party files a late affidavit inside the r 5.07 two-business-day window, a self-represented litigant must be given a real opportunity to be heard about receiving that material and to meet the new case. Reading the affidavit without that inquiry, then dismissing the father’s extant application as “vexatious” without a proper opportunity to address that characterisation, was appealable error ([26], [38], [45]). All paragraph references below are to the judgment.

Why it matters: Interim parenting Reviews often run on the papers with curtailed procedure. That does not cancel the hearing rule. Self-represented parents frequently face late affidavits, shifting ICL proposals and multiple applications on the same day. This judgment says the Court (and the represented parties who know the file) must still make sure the unrepresented party can meet the case actually being run ([35], [41]–[42]). A finding that an application is “vexatious” is serious. If it engages s 102QB, the statutory gateway and a specific opportunity to be heard are required ([45]).

🧩 Facts and Issues

The parties and the children

• Mr Shumakov (the appellant father) appealed against a Division 2 judge’s decision on a Review of parenting and property orders of a senior judicial registrar made on 9 January 2026 ([1]).
• Ms Ankudinova is the respondent mother. An Independent Children’s Lawyer (ICL) appeared ([cover]; [3]).
• The parenting proceedings concerned two children, X (born 2016) and Y (born 2020). The parents had been living separately under one roof for some time ([4]).
• Each party alleged the other had perpetrated family violence. These are allegations. This appeal judgment makes no findings about them ([5]).
• The judgment is published under a pseudonym with approval under s 114Q(2) (cover notes).

What was under review

• On 9 January 2026 the senior judicial registrar ordered sale of the former matrimonial home and an equal-time parenting arrangement (Order 5), with changeovers at day-care/school or otherwise at a nominated police station (Order 9) ([7]–[9]).
• The mother sought to review Orders 5 and 9 and, in their place, orders that the children live with her, vacation of Order 9, and a different default changeover location ([8], [10]).
• Before the primary judge, the live parenting issues included leave to bring the Review out of time; equal time versus live-with-mother / spend-time-with-father; changeover location; and whether the father should be ordered to provide a password to access CCTV footage ([3]).

The father’s Application in a Proceeding

• The day after the mother filed her Review, the father filed an Application in a Proceeding (provided 3 February 2026; sealed 26 February 2026) ([11]).
• It sought, among other things, return of a DVR unit and CCTV cameras, restraints about that equipment and about interference with his communication with the children, parentage testing limited to X, and authority to renew the children’s Country D National Identity Cards (not passports or travel) ([12]).
• He contended his relief was not a rehearing of the 9 January orders but sought to augment them. That application was extant when the Review was heard ([39]).

Late material before the 27 March 2026 hearing

• The mother’s 3 February 2026 Outline of Case listed her Review material but not a further affidavit she intended to file. An Outline of Case is not a vehicle for providing evidence that should be sworn or affirmed ([13]–[14]).
• She sought leave to file a further affidavit by 20 March 2026 but did not file one by that date ([14]).
• On 24 March 2026 the ICL filed an Outline relying on a Department of Child Protection report and information-sharing material, and proposed that the children live with the mother and spend time with the father on alternate weekends plus an alternate Wednesday afternoon — a reduction from equal time ([16]).
• On 25 March 2026 — two days before the hearing — the mother filed a new affidavit and Case Outline (sealed 3:53 pm and 3:54 pm) ([17]).
• The father filed further written submissions the next day. He was concerned that pages from information-sharing documents had been annexed, allegedly in breach of orders/undertakings. Christie J made no finding that any order or undertaking was breached ([19]). His submissions focused on that concern and did not raise late filing as such ([20]).

How the hearing ran

• The father appeared without a lawyer. Until 25 March 2026 he anticipated the Review would be determined on the material that had been before the senior judicial registrar ([22]).
• When leave was sought to rely on the recently filed affidavit, the primary judge said he would treat “his affidavit 25 March ’26 as being read” — which, given only the mother had filed that day, could only refer to her affidavit — without giving the father an opportunity to be heard about receiving it ([23]–[24], [26]).
• Rule 5.07 requires affidavits in support of or opposition to an interlocutory application to be filed and served at least two business days before the hearing ([25]).
• Later, the primary judge again treated the mother’s late affidavit as before the Court, with confused date references, and without procedural advice to the self-represented father ([28]–[30]).
• After the Review was heard and determined, the ICL raised the status of the father’s Application in a Proceeding. The mother’s lawyer said it was “entirely on top of what we did today”. The primary judge asked why it ought not be dismissed and then dismissed it “by reason of being vexatious” ([41]–[44]).

Issues

1. Was the father denied procedural fairness by the reception of the mother’s late affidavit without an opportunity to be heard and to meet the new case ([21]–[38])?
2. Was he denied procedural fairness in the dismissal of his Application in a Proceeding as vexatious, including any engagement of s 102QB ([39]–[45])?
3. If error is shown, should the matter be remitted, and what costs orders follow ([46]–[50])?

⚖️ Applicable Law – Legislation, Regulations, Rules

Under the Family Law Act 1975 (Cth), the following provisions mattered:

• s 102QB — vexatious proceedings orders. If the primary judge’s “vexatious” dismissal was an exercise of s 102QB(2)(a), there was no basis established under s 102QB(1) and no opportunity for specific submissions ([45]).
• Part XIVB and s 114Q(2) — publication restrictions and pseudonym approval (cover notes). Under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth):
• r 5.07 — each affidavit in support of or opposition to an interlocutory application must be filed and served at least two business days before the date fixed for the hearing ([25]).

Under the Federal Proceedings (Costs) Act 1981 (Cth):

• s 9 — costs certificate where, in the Court’s opinion, it is appropriate for the Attorney-General to authorise payment of a party’s costs of the appeal ([49]–[50]; Order 3).

📌 Precedents Relied On

• Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 — procedural fairness / bias-type grounds are considered before other grounds ([21]).
• Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 — same sequencing principle ([21]).
• SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 — the focus is fairness of the hearing, not fairness of the outcome ([32]).
• Kioa v West (1985) 159 CLR 550 — settled elements of procedural fairness: opportunity to be heard; to present a case; to lead relevant evidence; to make submissions; and to know the case made against you ([33]).
• RCB v Forrest & Ors (2012) 247 CLR 304 — a procedurally fair hearing is necessary to the orderly and just disposition of applications; content is context-specific. Interlocutory hearings without cross-examination are curtailed, but each party must still have an adequate opportunity to participate ([35]).
• Stead v State Government Insurance Commission (1986) 161 CLR 141 — raised via the ICL’s contention that the outcome was so certain that a fairness breach would not require setting aside ([36]).
• Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 and Bahonko v Sterjov (2008) 166 FCR 415 — reasonably discernible material errors should not be ignored even if parties do not raise them ([37]).

🧠 Analysis

Issue

Did a Division 2 Review hearing miscarry when a self-represented father faced a late affidavit (inside the r 5.07 window) that was read without asking him about it, and when his extant Application in a Proceeding was then dismissed as vexatious without a proper opportunity to address that label?

Rule

• Procedural fairness grounds are considered first ([21]).
• Fairness of the hearing is the question, not fairness of the outcome ([32]).
• The Kioa elements require a real opportunity to know and meet the case, including leading evidence and making submissions ([33]).
• Interlocutory hearings are curtailed, but “adequate opportunity to participate” still requires inquiry whether the party can meet a new case ([35]).
• r 5.07 sets a two-business-day affidavit floor for interlocutory applications ([25]).
• A “vexatious” dismissal that engages s 102QB needs the statutory gateway and a specific opportunity to be heard ([45]).
• Reasonably discernible material error can and should be acted on ([37]).

Application

The late affidavit was read without giving the father a say

Until two days before the hearing, the father reasonably expected the Review to run on the registrar-level material ([22]). The mother’s affidavit was filed on 25 March 2026 for a 27 March 2026 hearing — inside the r 5.07 period ([17], [25]).

When leave was sought, the primary judge treated the affidavit as read without giving the unrepresented father any opportunity to be heard about receiving it ([23]–[26]). Christie J held that, at a minimum, that opportunity was necessary. It was not provided ([26], [30]).

The father had not had an opportunity to lead evidence joining issue with the matters in the mother’s affidavit. Any attempt to do so would have placed him inside the two-day rule ([34]). In this context, adequate participation meant asking whether he could in fact meet the new case ([35]).

“Outcome was inevitable” did not save the hearing

Counsel for the ICL argued the interim outcome was sufficiently certain that a fairness breach would not require the orders to be set aside (in substance a Stead point) ([36]). Christie J was satisfied the hearing proceeded without a real opportunity for the father to address the late evidence ([38]). The appealable error was in the process.

The father’s Application in a Proceeding should have been in the room

The father had an extant application seeking parenting-related orders that joined issue with matters on the Review ([39], [41]). Christie J expressed sympathy for a busy primary judge and accepted that the father’s multiple documents obscured the relief he sought ([40]). Even so, after the Review had already been determined, raising that application was “unfortunate timing”. There was no sensible basis not to consider it with the Review (provided the mother identified no procedural disadvantage) ([41]).

The mother’s lawyer’s comment that the application was “entirely on top of what we did today” reinforced that a represented party should have drawn it to the judge’s attention before the Review was heard and determined, not after ([42]).

“Vexatious” is a serious label

The primary judge dismissed the Application in a Proceeding “by reason of being vexatious” ([44]). Christie J was not satisfied the father was given a proper opportunity to be heard about the nature and character of his application given the seriousness of that finding. If it was an exercise of s 102QB(2)(a), no basis under s 102QB(1) was established and no opportunity for specific submissions was afforded ([45]).

The father’s oral response made clear he opposed dismissal, but was “not otherwise particularly comprehensible” ([43]). Incomprehensibility of a self-represented submission does not replace the need for a fair opportunity on a vexatiousness finding.

Remitter, not a costs order against the mother

Having found procedural unfairness, remaining grounds did not need to be decided ([47]). The Review and Application in a Proceeding were remitted to a different judge ([46]; Order 2). Christie J was not satisfied the mother should pay the father’s appeal costs ([48]). A s 9 costs certificate was appropriate because the primary judge’s order was affected by error; the certificate covers filing and transcript fees up to $1,969.44 ([49]–[50]; Order 3).

The Court warned the litigation had “the hallmarks of descending into a procedural maelstrom” that would hinder rather than enhance best-interests decision-making — while still holding remitter was necessary ([46]).

Conclusion

The appeal was allowed because the Review hearing denied the self-represented father a real opportunity to meet late affidavit material and to be heard before his extant application was dismissed as vexatious ([38], [45]–[46]). The parenting Review and his Application in a Proceeding go back for rehearing before another judge. He receives a limited costs certificate; the mother does not pay his appeal costs (Orders 1–3).

This judgment does not decide what interim parenting orders are in the children’s best interests, and it makes no findings on the family violence allegations or on whether information-sharing material was misused ([5], [19]). Those matters remain for the remitted hearing.

🧠 Take-Home Lesson

• Procedural fairness is about the hearing, not the result. A “correct” interim outcome does not cure a denial of opportunity to meet the case ([32], [38]).
• r 5.07 is a real floor. Affidavits for interlocutory applications need at least two business days. Filing inside that window triggers a duty to hear the other party about leave ([25]–[26]).
• Self-represented litigants need the opportunity spoken out loud. At minimum, ask whether the late affidavit should be received and whether they can meet the new case. Do not simply “treat it as read” ([26], [35]).
• Represented parties share responsibility for the fairness of the listing. If an extant application joins issue with a Review being heard de novo, draw it to the judge’s attention before the Review is determined ([41]–[42]).
• “Vexatious” is not a throwaway word. If dismissal rests on that character — especially if s 102QB is in play — the statutory basis and a specific opportunity to be heard are required ([45]).
• Multiple documents from a self-represented party can obscure relief, but obscurity cuts both ways. Busy lists need clarity; they do not justify skipping the hearing rule ([40]–[41]).
• An Outline of Case is not evidence. Contentions about post-order events belong in a sworn affidavit, filed on time ([14]).
• On remitter after appellate error, consider a costs certificate under the Federal Proceedings (Costs) Act for filing and transcript outlay ([49]–[50]).
• Support workers and McKenzie friends: help self-represented parents identify late material early, ask for an adjournment or leave to reply, and keep an extant Application in a Proceeding on the judge’s radar before the Review is heard.

“Fairness of the hearing comes first. A late affidavit that is simply ‘treated as read’ can send the whole Review back.”

“If you are going to call an application vexatious, give the party a real chance to answer that charge.”