Bukari & Bukari (No 8) [2025] FedCFamC1A 219 (25 November 2025)

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bukari & Bukari has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons explain why the husband's application for leave to appeal from a series of interlocutory orders made by the primary judge on 22 August 2025 must be dismissed.

1. Final orders were made between the parties on 24 March 2023 to determine the financial cause of action between them under Pt VIII of the Family Law Act 1975 (Cth) ("the Act"). The orders provided, in part, for the net proceeds realised on the sale of two adjoining parcels of real property in Suburb C, NSW to be distributed to the parties in proportional shares of 64 per cent to the wife and 36 per cent to the husband.
2. The husband appealed from those orders, though the appeal was deemed abandoned and the application to re-instate the appeal was refused in July 2023 (Bukari & Bukari (No 5) [2023] FedCFamC1A 108).
3. On 23 July 2024, the husband filed a fresh application within the original jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) seeking to set aside the final orders pursuant to s 79A of the Act for alleged fraud. He also sought other miscellaneous forms of relief on both a final and interlocutory basis.
4. The husband registered caveats over the Suburb C properties, frustrating the wife's attempts to sell the properties in accordance with the final orders made in March 2023. She served caveat lapsing notices upon the husband, so he commenced litigation in the Supreme Court of NSW, which proceedings are still pending. The Supreme Court appointed independent trustees to sell the properties. Both properties have now been sold. Presumably the trustees will now report back to the Supreme Court about the acquittal of their duties.
5. At a hearing conducted on 11 August 2025, the primary judge entertained these interlocutory applications brought by the parties in the new proceedings brought under the Act:

(a) the Application in a Proceeding filed by the husband on 4 June 2025, which effectively sought, in interlocutory form, the same relief as that sought in his Initiating Application filed on 23 July 2024;

(b) the Response to an Application in a Proceeding filed by the wife on 6 August 2025, principally seeking the summary dismissal of the husband's application;

(c) the Application in a Proceeding filed by the husband on 25 July 2025, seeking similar interlocutory relief to that sought in the preceding application;

(d) The Response to an Application in a Proceeding filed by the wife on 5 August 2025, principally seeking the summary dismissal of the husband's application; and

(e) The wife's oral application for summary dismissal of the husband's Initiating Application filed on 23 July 2024, foreshadowed in her Case Outline document filed on 20 May 2025 (at [17(a)] and [17(b)]).

1. Some orders were made ex tempore at the hearing on 11 August 2025 to dispose of parts of the dispute. First, the husband's Application filed on 4 June 2025 and the wife's Response filed on 6 August 2025 were both dismissed, with the parties' consent (at [6]). Secondly, the husband's Application filed on 25 July 2025 was dismissed (at [7]).
2. The husband's application for leave to appeal from the orders made that day was dismissed last week (Bukari & Bukari [2025] FedCFamC1A 213).
3. After the hearing finished on 11 August 2025, judgment was reserved in respect of the remainder of the dispute (at [18]) and was delivered soon after on 22 August 2025. Excluding the orders which are not presently relevant (Orders 8-11), the primary judge made orders to:

(a) summarily dismiss the parts of the husband's Initiating Application seeking payment of child support arrears by the wife and another order fixing her with exclusive liability for the costs of the Independent Children's Lawyer ("the ICL") and single expert witness (Order 1);

(b) summarily dismiss the part of the husband's Initiating Application seeking relief under s 79A(1)(a) of the Act setting aside the final financial orders for fraud (Order 2);

(c) adjourn other parts of the husband's Initiating Application for later consideration (Orders 3-4), but not until after the parallel proceedings before the Supreme Court of NSW are complete (Order 5);

(d) adjourn the wife's application for "vexatious proceeding" orders against the husband for later consideration in conjunction with the residual aspects of the husband's application (Order 6); and

(e) compel the husband to pay the wife's costs in relation to his dismissed interlocutory application filed in July 2025 (Order 7).

1. By an Amended Notice of Appeal filed on 29 October 2025, the husband applied for leave to appeal from Orders 1, 2, 5, 6 and 7.
2. It is first necessary to correct the husband's misunderstanding about the ambit of this appellate proceeding, as he declared this in his Summary of Argument:

1. Introduction and Context

This appeal arises from property settlement orders made by [the primary judge] in [Bukari & Bukari] (No 3) [2023] FedCFamC2F 323.

(Emphasis in original)

1. Significantly, this proceeding does not concern the final orders made in March 2023. It relates only to a selection of the orders made on 22 August 2025.

1. The summary dismissal orders (Orders 1 and 2) are interlocutory in nature and therefore leave to appeal from them is required (Ebner & Pappas [2014] FamCAFC 229; (2014) FLC 93-619 at [29]-[33]).
2. The procedural directions (Orders 5 and 6), to the extent they are considered even capable of supporting an appeal, require the grant of leave because they are interlocutory in nature.
3. An appeal from the interlocutory costs order (Order 7) also requires the grant of leave to appeal (Shipton & Garwood [2024] FedCFamC1A 83; (2024) FLC 94-189 at [23]-[26]).
4. The grant of leave to appeal ordinarily requires the applicant to show the decision from which the intended appeal is brought is attended by sufficient doubt to warrant an appeal and, additionally, substantial injustice would result if leave were refused, supposing the subject decision to be wrong (Medlow & Medlow (2016) FLC 93-692 at [44]-[57]).
5. As the following analysis of the subject orders reveals, there is no reason to doubt the efficacy of the primary judge's decisions, so leave to appeal should be refused.
6. The eight grounds of appeal pleaded in the Amended Notice of Appeal filed on 29 October 2025 only need be discussed tangentially.

1. Order 1 summarily dismisses the husband's application for these two forms of relief within his Initiating Application:
   1. An order for the amount of child support owing to the father to be paid within 7 days of the judgment.

5. An order for [the ICL] and single expert costs to be paid in full by the mother.

1. In relation to those aspects of the husband's application, the primary judge said this:
   1. ... Further, his claims for the payment of arrears of child support do not appear to flow from any of the final orders made. The husband, simply, asserts that the wife has failed to pay child support which has exacerbated the financial pressure on his household. Similarly, orders in relation to the payment of the Single Expert's costs and [the ICL's] fees would appear to relate to the parenting proceedings concluded by consent parenting orders made on 17 October 2022, well before the final orders were made. However, the Court does note that the final orders provided for the payment of [the ICL's] fees from the sale proceeds received from the sale of Property 1 and Property 1A. The orders, so sought here by the husband, are poorly articulated, vague and appeared to be based, simply, on his assertion that the wife was the unsuccessful party in the parenting dispute and should bear the full costs, notwithstanding that those proceedings were settled, by consent. Those prayers for relief should be, clearly, dismissed now as untenable.

...

1. The Court is of the view that orders 4 and 5, as proposed by the husband in his Initiating Application filed on 23 July 2024, should be dismissed ...

1. The primary judge correctly dismissed those aspects of the husband's application.
2. The husband's claim for child support arrears was incompetent because the wife's liability for child support is a debt payable to and enforceable by the Commonwealth (ss 30, 38B and 39 of the Child Support (Registration and Collection) Act 1988 (Cth)). The debt was not enforceable at the suit of the husband.
3. The application for the wife to bear the costs of an ICL and a single expert witness was hopeless because no parenting proceedings then existed. The cause of action under Pt VII of the Act in respect of the parties' children was finally resolved years before in 2022 with their consent. Costs applications must be brought within 28 days of the conclusion of the relevant cause of action (r 12.13(3)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"); now s 114UB(4)(b) of the Act), which time had long since expired.
4. Grounds 2 and 3, which both complain of the primary judge's failure to correctly apply the legal principles governing the disposition of summary dismissal applications, must fail in so far as they apply to Order 1.

1. Within the husband's Initiating Application, he sought relief under s 79A of the Act, but only in so far as the final financial orders were vitiated by "fraud". This was the order he sought:
   1. An order pursuant to s79A of [the Act] to set aside the orders made on 23 March 2023 on the basis of fraud.
2. Order 2 dismissed the husband's application for relief under s 79A of the Act - but only to the extent he relied upon s 79A(1)(a) for alleged fraud.
3. The wife contended (at [30(b)]) and the husband admitted (at [34(g)]) he had no evidence of fraud. Consequently, the primary judge found the husband's application for relief under s 79A(1)(a) of the Act for alleged fraud had no reasonable prospect of success and had to be summarily dismissed (at [31]-[32] and [48]).
4. Ground 1 alleges the primary judge failed to consider, under the rubric of s 79A(1)(a), the wife's alleged suppression of evidence, but the ground cannot now be maintained in the face of his concession to the primary judge that he had no evidence of any fraud.
5. Grounds 2 and 3, which complain of the primary judge's failure to correctly apply the legal principles governing the disposition of summary dismissal applications, must also fail in so far as they apply to Order 2.
6. The primary judge observed how the husband implicitly conceded his application under s 79A of the Act had to transform into an application to vary, rather than entirely set aside, the existing financial orders by his alternate reliance upon s 79A(1)(c) of the Act (at [3]). Therefore, the husband's application for alternate relief under s 79A(1)(c) of the Act was expressly preserved (by Order 3), as were other aspects of the husband's Initiating Application (by Order 4). For clarity, Orders 3 and 4 are not the subject of any challenge by the husband.
7. Ground 6 which complains of the primary judge's failure to consider certain evidence under the rubric of s 79A(1)(c) of the Act is entirely misconceived. The primary judge had no occasion to consider the evidence adduced in support of an application when it was adjourned for later hearing. The husband is free to use such evidence when he eventually prosecutes his preserved application under s 79A(1)(c) of the Act.

1. Order 5 dictates that the preserved aspects of the husband's Initiating Application will be heard and determined in the future, but not until after the parallel Supreme Court litigation is concluded between the parties, for reasons given by the primary judge (at [40], [49] and [50]).
2. Ground 4 asserts the primary judge "erred in law" and fell into "jurisdictional error" by declining to hear and determine the husband's s 79A application at the hearing in August 2025, which claim is nonsense.
3. Order 2 summarily dismissed the husband's s 79A(1)(a) application because he conceded he had no evidence to prove it.
4. Order 5 preserves the husband's s 79A(1)(c) application for future hearing and no appeal lies directly from an order which merely adjourns an application for hearing at a later point in time (s 26(2)(b)(ii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).

1. Order 6 simply adjourns an aspect of the wife's application for relief to a future hearing.
2. It is not an order which affects the husband's rights in any way and is consequently not a "judgment" from which an appeal may be brought - with or without leave.

1. Order 7 compels the husband to pay the wife's party/party costs of his failed interlocutory application, filed on 25 July 2025.
2. None of the eight grounds of appeal challenge this costs order.
3. The subject interlocutory application was dismissed at the hearing on 11 August 2025 (at [7]), in which event it was wholly unsuccessful. The application sought the same relief which the husband had already unsuccessfully pursued in the parallel Supreme Court litigation (at [3]). His Honour therefore considered the husband should pay the wife's party/party costs in respect of the failed application (at [52]). No error is shown.

1. Ground 5 alleges the primary judge erred by declining to enforce a subpoena issued to the wife. The complaint is misconceived because none of the challenged orders deals with any objection to compliance with a subpoena or any application to enforce a subpoena. Besides, in the reasons, the primary judge explained why the husband's grievance about the wife's alleged non-compliance with a subpoena could not advance his interests in the disputes being determined by his Honour (at [34(c)]).
2. Ground 7 alleges the primary judge "erred in law by determining the property settlement", which complaint is misconceived. The final property adjustment orders were made between the parties on 24 March 2023. This is not an appeal from those orders. The husband's former appeal from those orders was deemed abandoned and his application to re-instate it was refused in July 2023.
3. Ground 8 alleges the primary judge "erred in failing to make preservation orders", which is no more than a bare complaint that his Honour refused to grant orders staying the auction sales of the real properties, to which there are two obvious answers. First, the Supreme Court of NSW had already refused the relief he had sought in that form on numerous previous occasions. Secondly, the same relief sought by the husband was refused by the primary judge by orders made on 11 August 2025 and this is only an application for leave to appeal from certain orders made on 22 August 2025. The husband's application for leave to appeal from orders made on 11 August 2025 has already been dismissed.

1. The husband made no application to adduce further evidence in the appeal in advance of the appeal hearing, as r 13.39(1) of the Rules requires.
2. At the hearing, without advance notice, the husband made an oral application to adduce a document as further evidence in this appellate proceeding to prove two things: first, he had not travelled to Country G in 2022; and secondly, he had not used matrimonial funds to buy property in Country G in 2022. The wife opposed his application. The document, even assuming it could prove the facts the husband believes and alleged, could not help him sustain any ground of the appeal and so it was dismissed because relevant principles were not engaged (CDJ v VAJ (1998) 197 CLR 172).

1. The application for leave to appeal from the orders made on 22 August 2025 is refused and the Amended Notice of Appeal filed on 29 October 2025 is dismissed.
2. The wife applied for and should have her party/party costs of these proceedings, which are fixed in the sum of $14,007 pursuant to s 114UB(5)(a) of the Act.
3. The husband said only this in relation to costs:

74. Costs:

1. The [applicant] has at all times acted in good faith, raising genuine issues concerning jurisdictional conflict, procedural fairness, and the interaction between State s 66G processes and exclusive federal family-law jurisdiction. The application is not an attempt to relitigate facts but seeks clarification of matters of broader systemic importance.

2. Under s 117 of [the Act], it would not be just or equitable to award costs against the [applicant]. The issues raised serve the wider administration of justice, and the appeal concerns structural jurisdictional questions that properly warrant appellate consideration.

(Exhibit A) (Emphasis in original)

1. The submission is rejected. The application for leave to appeal was wholly unsuccessful because it was entirely misconceived.
2. The applicant could not and did not cavil with the reasonableness of the respondent's costs because he wanted to claim costs of $15,500 from the respondent if the application for leave to appeal (and the appeal) succeeded.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.