For the reasons that follow, leave to appeal will not be granted and the appeal will be dismissed.
None of the three procedural orders subject of appeal are a "judgment" (Mullane). Further, the three subject orders are not decisive of either parties' rights under Pt VII of the Family Law Act 1975 (Cth) ("the Act"), or of any other legal right they enjoy, and do not prejudice the appellant's substantive rights in any way (Yule v Junek[1978] HCA 4; (1978) 139 CLR 1 at 14, 18, 21 and 26; Mullane). All three orders are entirely procedural in nature (Beale & Harvie[2023] FedCFamC1A 181; (2023) 69 Fam LR 294 at [10]; Fierro & Fierro[2022] FedCFamC1A 72 at [16]).
That should be the end of the matter.
Nevertheless, and for completeness, even if an appeal did lie from Order 9, all it does is give the appellant a date to attend upon a psychiatrist for the purposes of an assessment. On 20 May 2025, the primary judge ordered that the parties be psychiatrically assessed. The appellant's appeal from that order (and other orders) was previously dismissed in .
Conner
The appeal from Order 9 is also futile given that the time for attendance on the psychiatrist provided for in that order has passed; either the appellant has complied, or she has not. This Court would not ordinarily allow an appeal, even if the grounds of appeal contain some merit (which these do not), if there would be no utility in allowing it (Reece & Reece[2011] FamCAFC 24 at [108]-[109]; Naparus & Frankham[2018] FamCAFC 190 at [17]-[18]; Naparus & Frankham (No. 2)[2020] FamCAFC 238 at [46], Pitman & Hynes (No. 3)[2021] FamCAFC 82 at [7]-[8] and [12]).
Order 10, which permits the psychiatrist to engage a psychologist to administer psychometric testing, falls into the same process category as Order 9 above.
Order 11 simply states that, if the mother does not comply with attendance on the psychiatrist, the Court "shall consider" hearing the trial on an undefended basis. Three things arise here.
First, Order 11 is more akin to (and more properly ought to have been) a Notation than an order because it merely sets out some future possibility. Order 11, in and of itself, is not "prescriptive and enforceable" (Lainhart & Ellinson[2023] FedCFamC1A 200; (2023) FLC 94-166 at [27]-[28]) nor is it appellable (Mullane).
Second, all it says is that the Court "shall consider" the mode of hearing if the appellant fails to comply. No decision has been made, and thus no order has been made against the appellant, nor has she suffered any detriment. Should such a decision be made with respect to the mode of hearing the trial at some point in the future, then it will be a matter for another day whether the appellant is able to demonstrate how it vitiates the final judgment, should she appeal any of the orders arising out of that decision (Gerlach v Clifton Bricks Pty Ltd(2002) 209 CLR 478 at [1]-[8] and [43]-[51]).
Third, r 1.33 and r 10.27(2) of the Rules provide for hearings on an undefended basis should it be proven that a party has failed to comply with relevant procedural orders. In such circumstances, there is nothing new or novel in an undefended hearing.
As the appeal is incompetent, it is unnecessary to consider the proposed grounds of appeal. To do so would be otiose, see for example D_uarte & Morse (No. 3)_ [2023] FedCFamC1A 148 at [12].
[2]
Putting aside the incompetency of the appeal, the orders sought by the appellant extend well beyond the remedial nature of orders which an appeal court may make. For example, the appellant sought orders as follows:
[3]
5. Exclusion of Psychiatric Report
That the psychiatric report of Dr [C] be excluded from evidence and not relied upon in any proceedings between the parties.
6. Reliance on Existing Treating Practitioners' Evidence
That the evidence of the Appellant's treating practitioners be relied upon as sufficient for determining the Appellant's parental capacity and mental health fitness.
(Emphasis in original)
[4]
Family consultants, treating practitioners and psychiatrists possess different skills and expertise and thus may give opinion evidence based on their specific skill sets (Makita (Australia) Pty Ltd v Sprowles[2001] NSWCA 305; (2001) 52 NSWLR 705). The admissibility of affidavits from any witnesses (lay, therapeutic or expert) are matters which the appellant may take up with the primary judge at trial, and if admitted, challenge may then be made to their evidence. It is not for this Court to pre-determine the evidence that will be before the trial judge and what the trial judge may make of it.
[5]
For the reasons given, the application for leave to appeal is refused. It follows that the appeal will be dismissed.
[6]
The appellant sought to provide a schedule of costs if the appeal was upheld (proposed Order 4 of the Application in an Appeal). The schedule related to the costs of her securing the transcript. As the appeal was not successful, the proposed schedule becomes irrelevant.
The respondent is self-represented. He readily acknowledged he did not have any legal costs.
The ICL, for Legal Aid Queensland, sought costs in the sum of $5,612.68 as set out in the ICL's schedule of costs. The appellant was invited to make submissions about the ICL's costs but said she had "no submissions".
In short, the appellant has been wholly unsuccessful, and we consider it just pursuant to s 114UC(1) of the Act that the appellant pay Legal Aid Queensland's costs referable to the ICL in this proceeding. We set a timeframe of 28 days as that is sufficient time for the appellant to gather the modest sum which is ordered and makes clear to the appellant by when the costs are to be paid.
[7]
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Christie, Strum & Brasch.
Legislation Cited (4)
Circuit and Family Court of Australia Act 2021
Circuit and Family Court of Australia Rules 2021
Law Act 1975
Circuit and Family Court of Australia (Family Law) Rules 2021
Cases Cited (6)
The appellant mother seeks leave to appeal from the following three procedural orders made by the primary judge on 24 July 2025 (and amended on 25 July 2025):
The mother shall attend for an interview on 6 August 2025 (as directed by the Independent Children's Lawyer) with the psychiatric report writer (Dr. [C]) and participate fully as requested by the psychiatric report writer.
Dr [C] of [D Health Service] is permitted to use any psychologist she chooses to assist her in the preparation of the psychiatric report of the parties and such psychologist is permitted to assist with carrying out psychometric testing of the parties (including psychometric testing of the mother).
In the event that the mother does not comply with Order 9 herein the Court shall consider proceeding with the matter on an undefended basis.