Dusek & Nestor [2026] FedCFamC1A 41 (17 March 2026)

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

1. The applicant seeks leave to appeal, and to appeal, from orders dismissing the applicant's application for a change of venue.
2. The respondent opposes the granting of leave, and appeal.
3. The substantive proceedings concern the validity of a Binding Financial Agreement entered into on 22 April 2022.
4. The applicant in those proceedings is the respondent to the appeal. She commenced the substantive proceedings in the Canberra Registry. The applicant seeks the proceedings be dealt with in the Sydney registry.
5. For reasons which follow leave will not be granted, and the appeal will be dismissed.

1. The applicant resides in the Suburb B area of NSW. He has premises available in the Sydney metropolitan area. He shares in the care of a child from a former relationship with that child's mother.
2. The respondent resides in the Suburb C area of NSW. She lives with a child from a previous relationship, who is eight years of age. The parties previously resided together in the Suburb C area.
3. The parties met in Country D. The respondent travelled to Australia in November 2020 and took up residence with the applicant. They married on 15 May 2021 in Australia, and separated on 8 November 2022.
4. There are mutual allegations of family violence. A criminal matter is before the District Court in Sydney with respect to sexual assault charges against the applicant. The hearing is anticipated in March 2026.
5. The applicant lives about 430 km from the Canberra Registry and 200 km from the Sydney Registry. The applicant has accommodation available in Sydney about 10 km from the Registry.
6. The respondent lives about 160 km from the Canberra Registry, and about 290 km from the Sydney Registry.

IS AN ORDER PURSUANT TO RULE 9.01 AN APPEALABLE ORDER?

1. Orders for a change of venue are specifically provided for in s 217 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("the FCFCA Act"). Rule 9.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") provides that a party may apply to have proceedings heard in another registry of the court. Rule 9.01(3) sets out the matters the court must have regard to. The decision is an interlocutory order.
2. Until 2021 provisions of the Family Law Act 1975 (Cth) ("the Act") at s 94 provided for an appeal from a decree. The definition (s 4 of the Act) did not refer to interlocutory orders, only that a decree means a "decree, judgment or order".
3. In 2021 s 94 of the Act was repealed. Section 28(1) of the FCFCA Act provided for appeals from a judgment, defined at s 7 of the FCFCA Act as:

... a judgment, decree or order, whether final or interlocutory, a decision or a sentence, and includes a decree within the meaning of the Family Law Act 1975.

1. Leave is required for an appeal from many interlocutory orders, and appeals from some types of orders are prohibited, see s 26 and s 28 of the FCFCA Act, and reg 4.02 of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth).
2. The Federal Court of Australia Act 1976 (Cth) at s 4 defines judgments similarly to the FCFCA Act as including interlocutory orders. Interlocutory orders, by their very nature, are not determinations of the substantive rights of parties but their procedural rights. Appeals from interlocutory decisions determining issues of practice and procedure are commonly treated as appealable interlocutory order across various jurisdictions, see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170; Brambles Holdings Ltd v Trade Practices Commission [1979] FCA 80; (1979) 28 ALR 191 (dismissal of an application to strike out part of a pleading); Jess & Jess (No 3) [2023] FedCFamC1A 2; 68 Fam LR 424 ("Jess & Jess (No 3)") (orders for a separate hearing on a question); Maclean v Brylewski [2022] NSWCA 217 (setting a case for hearing); and Dupois v Queensland Police Service & Anor [2022] QCA 137 (orders adjourning a case for directions by a judge in a particular list). As the High Court said in Mellifont v Attorney-General (Qld) [1991] HCA 53; (1991) 173 CLR 289 at 300:

In conformity with the general principle that an appeal does not lie from a decision made otherwise than in the exercise of judicial power, it has been held that, interlocutory orders aside, an appeal will not lie under s. 73 from a decision which does not finally determine the parties' rights and obligations in controversy.

(Emphasis added, footnotes omitted)

1. In our view the order the subject of the appeal materially affected the procedural rights of the applicant and was not purely administrative. It is therefore an appealable interlocutory order. If a decision on a change of venue application is not appealable, there could be an injustice occasioned, for example, where an impoverished litigant in Adelaide could be precluded from appealing a decision to refuse a change of venue from Cairns, where their ability to participate in proceedings is significantly affected. The leave requirement in s 28 of the FCFCA Act provides an appropriate mechanism for a "tight rein" to be maintained on appeals concerning practice and procedure (see the comments of Sir Fredick Jordan in Re The Will of Gilbert [1946] NSWStRp 24; (1946) 46 SR (NSW) 318).
2. We accept that this is an appealable order within the meaning of s 26 of the FCFCA Act.

1. Section 28(1)(b) of the FCFCA Act provides that leave is required to appeal from a prescribed judgment of the Federal Circuit and Family Court of Australia (Division 2). Relevant to the present matter, a prescribed judgment is an interlocutory decree (other than a decree in relation to a child welfare matter): Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02.
2. The decision made is an interlocutory decision. It does not finally dispose of the rights of the parties (Licul & Corney [1976] HCA 6; (1976) 180 CLR 213 at 225), having regard to the legal rather than practical effect of the judgment. It deals with the procedural issue of the venue for the proceedings. Leave is required to appeal.

1. Orders to grant or dismiss applications for change of venue are discretionary, to which the principles of the House v The King (1936) 55 CLR 499 at 504-505 apply.
2. When determining whether grant leave to appeal**,** Medlow & Medlow (2016) FLC 93-692 ("Medlow") sets out the test to be applied: whether the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court, and whether substantial injustice would result if leave were refused. The applicant makes reference to earlier authorities where a disjunctive approach was taken with respect to the test. He argues Jess & Jess (No 3) endorses a disjunctive test. Jess & Jess (No 3) endorses the conjunctive test, citing Jess & Jess [2014] FamCAFC 227; (2014) FLC 93-620 and Medlow, with approval at 35. As was explained by Burchett J in Sharp v Deputy Commissioner of Taxation [1988] FCA 76; (1988) 19 ATR 908 at 910:

... the sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations.

1. We see no basis for departing from the current approach to applications for leave to appeal.
2. To determine if there is sufficient doubt and substantial injustice to warrant reconsideration it is of assistance to consider briefly the merits of the appeal.

1. The complaint is that the primary judge prioritised administrative convenience and timeliness over the merits of the case presented by the applicant. This, he argues, gives rise to a perception of apprehended bias and procedural unfairness.
2. The test for apprehended bias is set out in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 and requires the applicant to establish that "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide" (at 344).
3. The primary judge sought to identify the issues requiring determination, to consider the duration of the hearing. He queried whether inquiries had been made on the relative timing of a final hearing in Canberra or Sydney, that being a relevant consideration (rule 9.01(3) of the Rules). Neither party were able to assist. He indicated he was "left to my own devices", and aware that the case would be heard sooner in Canberra than Sydney. He invited the applicant to make further submissions after an adjournment. The judgment notes a hearing date was allocated on 8 August 2025 in the Canberra Registry, which was vacated. The listing date one month after a directions hearing supported earlier dates in the Canberra Registry.
4. The primary judge was aware of the applicable principles, advised the parties of matters within his knowledge, and invited submissions on that topic, including after an adjournment. For these reasons the complaint of procedural unfairness is not sustainable.
5. The complaint that the primary judge favoured administrative convenience over a merit based assessment is not sustainable. The primary judge referred to the facilities available to assist parties with disabilities and safety concerns as equivalent in both registries, and considered the concerns raised specific to Canberra. The applicant's claim of apprehended bias on the part of the primary judge is without merit.

1. The applicant argues that the decision is manifestly unjust and unreasonable when the evidence is considered. The categories of specific complaint are dealt with below.

1. The applicant submits the primary judge did not consider that each party had care of a child from a previous relationship (Appeal Book p.466), and only referred to the child in the respondent's care. He argues travel would take both parties away from care giving responsibilities.
2. The statement of the applicant's former partner sets out care arrangements for their child, who spends weekend time with the applicant (Appeal Book p.244 at paragraph 8). The applicant raised in submissions that he is now undertaking a greater share of care for the child. He referred to Appeal Book p.465-466 as providing evidence in support of his current care responsibility for the child. That is a reference to the applicant's Outline of Submissions filed 21 August 2025. There is no evidence of change to the situation referred to by his former partner, where she provides primary care for their child.
3. The respondent has full-time care of a child. This is a responsibility relevant to the respondent's ability to travel to a registry for the hearing. The applicant, at best, shares care of a child with the child's mother. The primary judge correctly identified this factor favours the respondent of Canberra being more geographically convenient to her.

1. The applicant has annexed to affidavits medical certificates from his general practitioner, Dr E, dated 13 April 2023 (Appeal Book p.233) and 23 June 2025 (Appeal Book p.441). One certificate refers to the applicant's diagnosis of post-traumatic stress disorder and generalised anxiety disorder. Both are notes headed "To Whom It May Concern". Dr E recounts the psychological and physical symptoms reported by the applicant, which are consistent with the trauma described. Dr E and a clinical psychologist provide care to the applicant under a treatment plan, the terms of which are not provided.
2. Dr E urges the applicant's diagnosis of post-traumatic stress disorder and generalised anxiety disorder should be considered by the Court when determining matters of compliance by the applicant, saying, "rigid procedural demands may result in significant deterioration of Mr Dusek's health and impede his ability to engage effectively with the legal process". Dr E notes recounting traumatic experiences has the potential to worsen the applicant's mental health symptoms (Appeal Book p.441). Dr E indicates obtaining medical appointments can take days to several weeks, which may require the applicant to use another general practitioner, emergency services or Telehealth services. Dr E cautions against drawing an adverse inference from use of these alternate sources of support by the applicant.
3. Dr E does not refer to issues arising for the applicant from the location of the court. The medical certificate does not refer to the symptoms reported by the applicant being exacerbated by travel. Dr E's practice address is Suburb F, a suburb of Sydney. The applicant does not raise any issues with travel for him in consulting Dr E. None of the documents referred to explain any particulars of the applicant's condition or treatment which would prevent the applicant from participating in proceedings in the Canberra Registry. The applicant's own evidence as to his needs is minimal (Appeal Book p.275).
4. The applicant's mother is elderly and has hearing issues. He argues the Sydney registry is better equipped to accommodate her disability. There may be issues with her attendance if required, and ability to connect to the courtroom through electronic means.
5. Hearing assistance technology is available in both registries. The applicant's mother's affidavit provides her address as the applicant's address near Suburb B. She does not reside proximate to either the Sydney or Canberra Registries. It will be inconvenient to her to appear in either registry. Directions can be made to facilitate her being available for cross-examination if required, including by Audio Visual Link ("AVL") with appropriate assistance.

1. The applicant has previously been employed in the area of defence and intelligence. He raises security concerns were he required to travel to Canberra for a hearing. He relies on two documents from the Australian Security Intelligence Organisation ("ASIO") in support of this contention. The first is a redacted Adverse Security Assessment. The unredacted paragraphs of the Assessment contain the applicant's details, and his report that the respondent may be connected to Country D intelligence services (Appeal Book p.180-181). ASIO notes the applicant has access to information likely of interest to Country D Intelligence Services. It is noted that the assessment incorporates intelligence from domestic partners. The rest of the document is redacted.
2. The document does not provide an evidentiary foundation for a connection between the respondent and Country D intelligence services. There is no assessment from ASIO that provides that connection, nor can it be inferred from the redacted document.
3. The second document relied on is a letter to the applicant from ASIO providing a "personal security briefing - [Country D]". The document is undated. It refers to the application for Australian Government security clearance, and that "you/your family have reported ongoing/past connections with the [Country D]". The letter sets out various potential security risks which may arise from Country D intelligence services targeting Australian Government clearance holders and their families.
4. The evidence discloses the applicant has previously resided in Country D. His former wife, Dr Dusek is a dual Australian/Country D citizen. The respondent is a Country D citizen. The letter from ASIO provides general security information. There is no reference to the specific circumstances of the applicant, or his family, at the time the letter was sent. It does not support a submission that there is a safety concern to the applicant from the respondent, the Country D embassy, or Country D intelligence services were he required to attend the Canberra registry.
5. Both parties make allegations of family violence against the other. There are criminal proceedings before the District Court in NSW where the applicant has been charged with offences against the respondent. The documents from NSW Police reveal a variety of allegations have been made by each of the parties against the other.
6. The applicant argues that as the Sydney registry is larger than Canberra, it provides a more secure environment. Both the Sydney and Canberra registries can implement safety plans for the security of litigants where there are issues of family violence or risk from third parties. This can include use of safe rooms and AVL facilities if required.

1. The applicant submits that consideration of the adequacy of facilities having regard to disability or safety concerns referred to in r 9.01 of the Rules should encompass a holistic assessment of practical accessibility, travel implications, social, cultural and medical constructions, and access to support persons. As put by him in submissions it is a social construction question. This is of particular relevance to him as an unrepresented litigant.
2. There may be cases where there is evidence of a party's specific needs which cannot be met in a particular place where a court is located which may require this factor to be given significant weight. The applicant has not provided evidence that would allow for such a determination. The evidence on which he relies, as referred to above, does not support that he cannot travel to the Canberra registry, nor that doing so would deny him medical or psychological support.
3. All registries have similar facilities to deal with vulnerable parties, including those who are self-represented, and witnesses. The judge hearing the matter can make appropriate directions to facilitate participation, as referred to by the primary judge. This occurs routinely in all registries of the court.

1. The applicant raises financial difficulties affecting his ability to travel. He has failed to provide evidence by way of a Financial Statement, or details within his affidavit to support this contention. The only evidence is from the disputed Binding Financial Agreement, which reveals net assets of around $1 million. He has now sold properties he retained pursuant to the Agreement. While his financial position has changed, he has not provided evidence of his current circumstances.
2. The applicant points to the respondent's employment and says that he is unemployed. The respondent is employed on a low income, with care responsibility for a child. The primary judge found correctly there is financial hardship for both parties in the matter proceeding in either registry.

1. The applicant hypothesised that some of his witnesses may be unable to use an AVL. AVLs are arranged within the court in Sydney if required and are not dependent upon a witness having their own equipment. This is not a relevant consideration.
2. The applicant complains that on one directions hearing via AVL only the respondent's solicitor appeared by video as the respondent had travelled to Country D to attend to family matters but had joined by an audio link to her solicitor's office later in the day (see Notations to orders of 17 July 2025, at Appeal Book p.30). This event appears to be to be of no real relevance: it does not show that the respondent has failed to participate in the proceedings, nor that she is unlikely to attend.
3. The applicant complains that the primary judge gave no specific consideration to him being unrepresented. However, such a consideration would likely tell against his application as the respondent would have to pay for her lawyer to travel further (or engage a town agent) if the matter were transferred to Sydney.
4. As identified in Ground 1 the primary judge placed weight upon the time it would take for a hearing. It is a significant factor in all cases. The reasons demonstrate that the primary judge also considered other matters and did not allow this consideration to be determinative.
5. We are not persuaded that there is any merit in the applicant's arguments that the primary judge failed to have regard to any relevant factors that were material to the decision, nor that the decision of the primary judge was unreasonable. Indeed, on the facts of this matter we would make the same orders even if re-exercising the discretion. We therefore find no merit in this ground.

1. The applicant submits the primary judge failed to engage with authorities relied on in argument, which the applicant argues support his case. The cases cited are all parenting matters. Whilst other factors were also considered, relevantly all were transferred to registries proximate to where the children the subject of the proceedings reside. That does not arise in this matter.
2. None of those cases set out a principle or rule that was determinative of this application, nor any aspect of this application. They were no more than examples of the exercise of the discretion to order a change of venue in other cases.
3. It is well established that a judge's reasons are only to provide the reasons for the decision made. In this case the primary judge identified the contents of r 9.01(3) of the Rules and the evidence relevant to the various considerations. Judges are presumed to know the law: they do not have to set out quotes or references from other cases. A judgment is not a law review article for a journal to be embroidered with case references and footnotes that are not necessary for the decision. In our view the approach of the primary judge in providing concise, clear and readable reasons focused on the relevant considerations was entirely appropriate for this type of application and to be encouraged.
4. This ground is without merit.

1. The applicant argued that the primary judge misinterpreted r 9.03(a) which provides "the adequacy of the available facilities, having regard to any disability of a party or witness, and any safety concerns", arguing that the primary judge undertook "a superficial comparison of registry infrastructure" rather than considering "how facilities function in the party's specific circumstances".
2. The primary judge identifies that each registry "has more than adequate facilities" and that the "facilities for disabled persons and for persons whose safety needs protection are identical in each of [the] two registries" (at [18]-[19]). The primary judge also specifically considered the husband's post-traumatic stress disorder and generalised anxiety disorder (at [17]) and the hearing disability of his witness (at [21]).
3. There is no merit in this ground.

1. The consideration of the grounds of the appeal supports the finding that the appeal lacks merit. The decision does not affect the applicant's substantive rights and does not finally determine any issue in the proceedings. Leave is not granted, and the appeal is dismissed.

1. The respondent sought costs of the appeal in the sum of $7,375.14 as particularised in her Costs Notice filed for the appeal. Whist this was described as indemnity costs, we are comfortably satisfied that the amount is no greater than what would be assessed on a party and party assessment.
2. Rule 13.53(2) of the Rules requires parties who intend to seek costs at the end of the appeal to file and serve a schedule of costs, and be in a position to address the court as to costs at the conclusion of the hearing. Both parties have filed a costs schedule. The respondent's application for costs will be determined.
3. Applications for costs are governed by s 114UB of the Act. Section 114UB(1) provides parties should ordinarily meet their own costs. Section 114UB(2) provides a court may depart from that if the court is of the opinion there are circumstances which justify that approach. Costs may be ordered if "just" in all the circumstances.
4. The applicant has prosecuted an unmeritorious appeal. The respondent has incurred costs in defending the appeal. It is just for an order for costs to be made.
5. Relevant matters to be considered in determining costs at s 114UB(3) are the financial circumstances of each party, the conduct of the parties in relation to the proceedings and whether either party has been wholly unsuccessful.
6. The applicant has not filed a Financial Statement. The evidence as to his financial circumstances arises from the Binding Financial Agreement in dispute. At the time the document was prepared in April 2022 the applicant had approximately net $1 million of assets. He is no longer employed. He agreed in submissions he was paid a redundancy. He has sold assets. He submits he is engaged with various legal matters which have occasioned expense. There is no evidence about the specific financial impact of these matters.
7. The respondent has filed a Financial Statement on 4 July 2024. She has a modest income largely taken up by expenses for herself and her child. She received a joint property in City G under the Binding Financial Agreement. She has a motor vehicle.
8. The applicant has been entirely unsuccessful in circumstances where the issue concerns financial matters, his financial circumstances are greater than the respondent's and where he has been unsuccessful on the issue both before a registrar and then a judge prior to the appeal.
9. We are satisfied it is appropriate to order the applicant to pay the respondent's costs. As the amount sought by the respondent is no greater than reasonable party and party costs, we will order that the applicant pay the respondent's costs in that amount.

1. The applicant seeks leave to appeal from an order made by a judge in the Federal Circuit and Family Court of Australia (Division 2) on 25 August 2025 dismissing his Application for Review of a determination made by a senior judicial registrar on 15 July 2025 refusing his application to change the venue of a proceeding as to the validity of a financial agreement to be Canberra rather than Sydney.
2. Issue exists as to whether an appeal can competently lie from the judgment under challenge.
3. An appeal does not lie against every order or direction made by a judge. Orders which "d[o] not determine the proceedings, nor any issue in the proceedings, nor d[o] they conclude any substantive legal rights of the parties" cannot be the subject of an appeal (Kabat & Garacia [2019] FamCAFC 191 at [2]). This is consistent with a long line of reasoning (see Commonwealth v Mullane [1961] HCA 28; (1961) 106 CLR 166; Yule v Junek [1978] HCA 4; (1978) 139 CLR 1).
4. In Bonner & Chandler [2021] FedCFamC1A 81; (2021) FLC 94-063 the Full Court said:
   1. ...The dismissal of the appellant's application for the appointment of a single expert witness was merely an order in the nature of a procedural ruling within the substantive proceedings. The order dismissing that particular application is not a "judgment" amenable to appeal because it is not an operative judicial act which binds the parties' rights and disposes of any justiciable cause between them under Pt VII of the Act (Driclad Pty Ltd v Federal Commissioner of Taxation [1968] HCA 91; (1968) 121 CLR 45 at 64; Commonwealth v Mullane [1961] HCA 28; (1961) 106 CLR 166 at 169)...

1. The Full Court in Hullet & Benton [2022] FedCFamC1A 13; (2022) FLC 94-072 (Austin, Tree & McEvoy JJ) ("Hullett") dismissed an appeal from a first instance judge in the Federal Circuit and Family Court of Australia (Division 1) determining a review from a registrar and identified:
   1. However, there is a wider question of whether any appeal capably lies from any of the orders. The existence of a "judgment" is the pre-requisite for a competent appeal (s 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("the FCFCA Act")), for which purpose a "judgment" is defined to include an order or decree, whether it be final or interlocutory (s 7 of the FCFCA Act).
   2. But importantly, a "judgment" does not include a mere ruling on a question of law which is not decisive of the parties' rights in the justiciable dispute, even if it is expressed in the form of an order (Commonwealth v Mullane [1961] HCA 28; (1961) 106 CLR 166 at 169; Yule v Junek [1978] HCA 4; (1978) 139 CLR 1 per Mason J at 14, Jacobs J at 18, Murphy J at 21 and Aickin J at 26).
   3. Here, none of the orders amount to a "judgment" since none is decisive of the parties' rights under Pt VIII of the Act. The orders do no more than achieve the continuity of the proceedings. The primary judge simply ruled on the question of law concerning the continuing competency of the proceedings, once the wife had withdrawn her consent to the original orders and the executor (after his substitution for the deceased) foreshadowed an intention to prosecute an application for property settlement orders in one form or another.
   4. Leave to appeal must be refused once it is understood that no appeal validly lies. However, since the incompetency of the appeal was not contemplated by either party prior to the hearing and each had prepared on the basis that the proposed appeal would be contested on merit, it is nonetheless worthwhile to briefly explain why it lacked merit.

1. Subsequent Full Courts have confirmed the "bright line test" to discriminate between judgments from which an appeal may competently lie, including even if only on an interim basis, and other determinations made by a judge where no appeal is competent because the determination is not a judgment for the purposes of s 26(1) of the FCFCA Act (Beale & Harvie [2023] FedCFamC1A 181; (2023) 69 Fam LR 294 (Austin J) at [10]; Fierro & Fierro [2022] FedCFamC1A 72 (Austin J) at [16]). The Full Court in Ancer & Ancer [2024] FedCFamC1A 90 (Austin, Sutherland & Schonell JJ) reaffirmed that recorded in Hullett (at [18]-[19]).
2. Deputy Chief Justice McClelland and Riethmuller J in the Full Court in Verber & Verber [2025] FedCFamC1A 240 said:
   1. Purely procedural directions which do not impact upon parties' rights rarely have the necessary quality of being appealable, for example: listing a matter for a call-over is purely procedural and not appealable (Vang & Chung (No 2) [2024] FedCFamC1A 190); simply listing a matter for trial is not generally appealable (Kabat & Garacia [2019] FamCAFC 191); orders requiring a party to file a consolidated contravention application are purely procedural and not appealable (Rilak (No 2) [2022] FedCFamC1A 100). Yet, a ruling upon whether a witness may adopt a pseudonym is an order that may be appealed by the witness as it affects the rights of the witness: see Witness v Marsden [2000] NSWCA 52; (2000) 49 NSWLR 429.
3. The determination of whether a judgment is competent on appeal is not static, being dependent on nature and context. It turns on whether the judicial act or determination affects the parties' rights or disposes of all or part of the justiciable cause between them pursuant to the Act, such that the right or claim cannot be adequately protected on appeal after a final hearing.
4. As identified by Austin J siting as the Full Court in Provenza & Provenza [2024] FedCFamC1A 213, the construction of the FCFCA Act and applicable appellate principle ensures that appeals from "judgments" can pick up and challenge earlier interlocutory errors (s 36(5) of the FCFCA Act) but not if the interlocutory decision itself was a judgment from which an appeal separately laid or had no effect on the final result the subject of the appeal (Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 ("Gerlach v Clifton Bricks")). If interlocutory decisions which cannot be appealed somehow compromise the final judgment, then in an appeal brought from the final judgment, the appellant, consistent with principle established by the High Court in Gerlach v Clifton Bricks, will be able to advance that contention as a ground of appeal (see Chong & Kerimowa [2025] FedCFamC1A 158).
5. The rapidly evolving changes now adopted in the management and conduct of litigation as to information delivery and communication technology have relevance to the discrimination of whether an act or determination is a "judgment" to make an appeal competent. This includes, but is not limited to, the digital filing of documents, the digital adducing of documents into evidence, and appearances at trial by audio visual link.
6. The current order subject to challenge as to venue is not a judicial act or determination that affects the existence, extent, or enforceability of the rights or duties of either party to the proceedings in the justiciable cause to challenge the financial agreement pursuant to the Act, or any identifiable part of them. In this matter, the issue as to venue at this point in the litigation pathway does no more than govern the mode or conduct of the proceedings. It is all but administrative.
7. The majority in these reasons identify that "[i]f a decision on a change of venue application is not appealable, there could be an injustice occasioned". With respect, "could be" does not convert the character of the act or determination to become a "judgment" for the purposes of s 26(1) of the FCFCA Act.
8. The applicant, by way of the challenge on appeal, has not been precluded from any form of participation in the proceedings to date. Thus far, no order of adverse consequence has been made affecting the rights of the applicant. In the event such circumstance evolves, the applicant may have capacity to agitate a complaint of error as to any interlocutory procedural decision in demonstrating how it vitiates the final judgment.
9. As the appeal is incompetent, it is unnecessary to consider the application for leave to appeal or the proposed grounds of appeal. The appeal should be dismissed at this point.
10. If the application for leave to appeal from the order under challenge was competent in that it impinges upon the applicant's rights and disposes of the justiciable cause between the parties pursuant to the Act, I would dismiss it for the reasons exposed by Riethmuller & Boyle JJ.
11. I agree with the majority as to the determination as to costs.

I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Riethmuller, Campton & Boyle .