Craig v South Australia

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 Darlow & Darlow has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 25 September 2025, the applicant filed a Notice of Appeal seeking leave to appeal from an order made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 18 September 2025.
2. The application for leave to appeal was listed for summary hearing on 8 October 2025 to give the applicant the chance to submit why the application should not be summarily dismissed for lack of any prospect of success (s 46(2) and s 46(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("the FCFCA Act")).
3. The applicant asserted she was only given 13 days' notice of the show cause hearing when she deserved 14 days' notice (r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), but she was in error. Rule 13.45 only applies if an appeal is liable to dismissal for a litigant's default. The applicant is not in default of any procedural direction or rule.
4. The original proceedings comprise a parenting dispute between the parties under Pt VII of the Family Law Act 1975 (Cth) ("the Act"), commenced in 2023 and yet to be heard.
5. As required by the FCFCA Act (ss 25(1), 50(1) and 132(1)(a)), the original proceedings were commenced in the Federal Circuit and Family Court of Australia (Division 2).
6. On 18 September 2025, the primary judge made this order transferring the proceedings:
   1. Pursuant to s.149 of [the FCFCA Act], this proceeding is transferred to the Federal Circuit and Family Court of Australia (Division 1).
7. No other order was made by the primary judge.
8. The applicant applied for leave to appeal from the transfer order, but no appeal lies from the transfer order, with or without leave (s 149(4) of the FCFCA Act). The application for leave to appeal from the transfer order is therefore incompetent and is summarily dismissed.
9. Nothing the applicant did say or could say changes that fact. The applicant relied upon written submissions entitled "Minute to the Court", which she elaborated orally.
10. Her complaint of being denied procedural fairness by being subjected to this summary hearing is rejected. She was informed by the appeal registrar when she tried to file an earlier iteration of the Notice of Appeal that s 149(4) of the FCFCA Act precluded any appeal from the transfer order, so it is no surprise to her. In an email sent to the applicant by staff of the national appeal registry at 11.21 am on 22 September 2025 she was informed (in part):

...your Notice of Appeal is incompetent:

• Section 149(4) of the [FCFCA Act] states: "An appeal does not lie from a decision of the Federal Circuit and Family Court of Australia (Division 2) in relation to the transfer of a proceeding under this section"

• The statutory bar against such appeals is absolute, and accordingly your appeal has been rejected for filing.

(Emphasis in original)

1. She unwisely filed this appeal despite such warning.
2. The applicant's bare assertion that the primary judge did not have jurisdiction to make the transfer order, which contention is not found among the 11 intended grounds of appeal, is also rejected. The applicant's assertion of the primary judge's failure to apply the substantive provisions of Pt VII of the Act as being the manifestation of jurisdictional error is misconceived since the parties' substantive parenting applications are still to be considered and determined, albeit now by the Federal Circuit and Family Court of Australia (Division 1).
3. It is true that privative provisions like s 149(4) of the FCFCA Act do not block appellate correction of jurisdictional error (Genesalio & Genesalio [2023] FedCFamC1A 109; (2023) 67 Fam LR 186 at [17]-[21]). However, jurisdictional error only occurs when the decision-maker misconceives its role, misunderstands the nature of its jurisdiction, misconceives its duty, fails to apply itself to the question required of it, or misunderstands the nature of the opinion which it was required to form (Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29; (2025) 424 ALR 1 at [51]-[56]; Stanley v DPP (NSW) [2023] HCA 3; (2023) 407 ALR 222; Kirk v Industrial Court of NSW [2010] HCA 1; (2010) 239 CLR 531; Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163). That did not happen here when the primary judge made the transfer order.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.