No Judgment, No Appeal: Conner & Conner (No 2) Reinforces Limits on Appealable Family Law Orders

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.