You Can’t Appeal a Case Management Decision: The Family Report Fight That Went Nowhere
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.
