Kostic & Vaughun [2025] FedCFamC1A 205 (11 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 Kostić & Vaughun has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The substantive proceedings concern parenting and financial matters between the first respondent ("the wife") and the second respondent ("the husband"). On 10 July 2025, a Judge of the Federal Circuit and Family Court of Australia (Division 1) ordered the sale of a property, namely, [Lots 1 and 2, D Street], and for a sum of $50,000 to be paid to the wife by way of partial property settlement.
2. Within hours of the 10 July 2025 order, the husband lodged a caveat on [Lot 1] necessitating an application by the wife to have it removed and to restrain the husband from doing so again. Shortly before the hearing of the wife's application on 28 July 2025, the husband removed the caveat.
3. On 29 July 2025, a third party, Ms Kostić, lodged a caveat over [Lot 1] necessitating a further application by the wife. On 6 August 2025, Ms Kostić was ordered to remove the caveat, not to relodge a caveat, and not to assist any other person in lodging a caveat. Ms Kostić has appealed against that order.
4. The appeal is listed for hearing on 18 November 2025.
5. There are only two active parties in the appeal, namely, Ms Kostić ("the appellant") and the husband as a respondent. The appellant and the husband are known to each other with the appellant contending she has known the husband since January 2025. The wife and the Independent Children's Lawyer have each filed Submitting Notices in the appeal.

1. On 30 October 2025, an Appeal Judicial Registrar dismissed an Application in an Appeal filed by the appellant on 20 October 2025 ("the original application") and a Response to the original application filed by the husband on 27 October 2025.
2. It is apparent on the face of the Application in an Appeal filed by the appellant on 7 November 2025 that the appellant seeks a review of the Appeal Judicial Registrar's order made on 30 October 2025 ("the application for review"). The application for review is sought to be determined in Chambers in the absence of the parties (r 13.38 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the rules")).
3. The relief sought in the original application was as follows:
   1. The Court declares [an Appeal Judicial Registrar] did not make a procedure [sic] order on 24 September 2025.
   2. In the alternative the Appellant be granted an extension of time to lodge an application for a review of the procedural order of [an Appeal Judicial Registrar] made on 24 September 2025.
   3. The procedural order of [an Appeal Judicial Registrar] made on 24 September 2025 be set aside.
   4. The appeal book be amended as detailed in the supporting affidavit.
   5. The Appellant and the [husband] be given leave to amend their summary of argument but only so the same fully reference anyupdated [sic] appeal book.
   6. [An Appeal Judicial Registrar] no longer have carriage of this Appeal.
   7. Any other orders the Honourable Court deems necessary.
4. The relief sought in the husband's Response filed 27 October 2025 was as follows:
   1. [An Appeal Judicial Registrar] has no carriage of any matter before this jurisdiction in which the [husband] is a party.
   2. [An Appeal Judicial Registrar] has no carriage of any matter before this jurisdiction where [the appellant] ... is either a third party or a party.
5. The application for review by the appellant, pursues similar relief to that sought in the original application, in the event the application for review is successful, as follows:

1. The order of [an Appeal Judicial Registrar] made on 30 October 2025 be set aside.

2. A declaration that there was no procedural order validly made by [an Appeal Judicial Registrar] on 24 September 2025.

3. In the alternative an extension of time to lodge an Application for Review of the decision of [an Appeal Judicial Registrar] made on 24 September 2025 be granted.

4. The procedural order(s) of [an Appeal Judicial Registrar] made on 24 September 2025 be set aside.

5. The Appeal Book be amended as detailed in the Application in an Appeal dated 20 October 2025 [and] written submission of the [appellant] dated 28 October 2025.

6. The Appellant and the [husband] be granted leave to amend their summary of argument but only so the same fully reference any updated appeal book.

7. The Appellant and the [husband] be granted leave to amend their summary of argument to incorporate addressing leave to appeal grounds.

8. [An Appeal Judicial Registrar] no longer have carriage of this Appeal.

9. The Full Bench hearing of the Appeal scheduled for 18 November 2025 be set aside if this review and any subsequent appeal are not finalised before that date and the Appeal book not updated for any ordered changes.

10. The Full Bench hearing of the Appeal be rescheduled if necessary for an appropriate date.

11. Any other orders the Honourable Court deems necessary

1. A review of an Appeal Judicial Registrar's order relating to the conduct of an appeal or the rejection of a document by an Appeal Judicial Registrar, is permitted by r 13.40 of the rules. Rule 13.40 is found in Chapter 13, Part 13.7, Division 13.7.2. Chapter 13 specifically applies to appeals.
2. The determination of the application for review in the absence of the parties is permitted by r 13.38(2)(a) of the rules. The consent of the parties is not required.
3. Curiously, Chapter 13 of the rules is silent as to the procedure on review of an Appeal Judicial Registrar's order or rejection of a document.
4. Chapter 14 of the rules is headed - "Registrars and delegated powers" and Part 14.3 of Chapter 14 applies to an application for review of an exercise of power by a Senior Judicial Registrar or Judicial Registrar but "does not apply to an application for a review of an order by an Appeal Judicial Registrar" (r 14.04(b)).
5. As to the procedure for review of an exercise of power by a Senior Judicial Registrar or Judicial Registrar, r 14.07 provides as follows:

(1) A court must hear an application for review of an exercise of power by a Senior Judicial Registrar or Judicial Registrar as an original hearing.

Note: In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.

(2) The court may receive as evidence:

(a) any affidavit or exhibit tendered in the first hearing; or

(b) with the leave of the court, any further affidavit or exhibit; or

(c) the transcript (if any) of the first hearing; or

(d) if a transcript is not available - an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.

(3) The court may determine an application for review in the absence of the parties without an oral hearing if:

(a) the parties to the application consent to the making of the decision in their absence without an oral hearing; and

(b) the court considers it appropriate to make the decision in the absence of the parties without an oral hearing.

1. In the absence of any submissions on the point, it seems to me to be appropriate to adopt a procedure for review that is most favourable to the appellant i.e. as an original hearing. In that regard, I receive as evidence not only the appellant's affidavit filed 20 October 2025 but also her further affidavit filed 7 November 2025.
2. On 24 September 2025, an Appeal Judicial Registrar communicated by email to the parties as follows:

Dear parties,

This appeal is listed to proceed before the Full Court, sitting in [redacted] on [redacted].

I refer to emails sent to the National Appeals Registry in Melbourne on 24 September 2025, from the second respondent at 2:45pm (Melbourne time) and from the appellant at 3:20pm (Melbourne time).

The appeal book index was revised with the parties' consent, as expressed in their various emails to the court on Sunday, 14 September 2025, each of which was deemed received by the National Appeal Registry Melbourne on Monday, 15 September 2025. On the basis of the parties' consent and in view of the strictures of rules 13.20 and 13.21 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, a chambers order was made on 17 [sic][1] September 2025 to expand the list of documents contained within the appeal book. This prospect was foreshadowed in the email sent to the parties by the National Appeal Registry at 11:44am on 8 September 2025. The revised index is annexed to the orders made on 17 [sic] September 2025. The orders including the annexed revised index were made available to the parties on the portal, and by email sent to the parties at 12:59pm (Melbourne time) on that day, namely 17 September 2025.

The appeal book now contains the affidavit material relied upon by the parties at the hearing before the primary Judge which occurred on 6 August 2025, namely:

a. Affidavit of [the wife] filed 31 July 2025;

b. Affidavit of [the husband] filed 5 August 2025;

c. Affidavit of [the appellant] filed 5 August 2025; and

d. [The appellant's] Amended response filed in court on 6 August 2025.

The revised index and the digital appeal book now includes those agreed documents at items 13, 15, 16 and 17 of the revised index. The inclusion of these documents does not offend the Court's Rules.

The Amended Notice of Appeal filed 1 September 2025 and Second Amended Notice of Appeal filed 15 September 2025 have been filed, as the Commonwealth Courts Portal clearly demonstrates, and the parties can be assured that the Full Court has been made aware of the documents. The Amended Notice of Appeal filed 15 September 2025 supersedes those filed before it. The Amended Notices are not included in the appeal book per se and need not be.

The appeal book is settled and now complies with Rules 13.20 and 13.21. The court's Rules are clear on proper inclusions in the appeal book and you are encouraged to refer to those rules.

The administration of this appeal remains with the Southern Appeal Registry at this time.

1. The email provided information to the parties in the appeal. It was not an order. As there was no order made by the Appeal Judicial Registrar on 24 September 2025, it renders the relief sought in paragraphs 1-3 of the original application and the relief sought in paragraphs 2-4 of the application for review otiose.
2. As to the amendments sought to be made to the appeal book: the appellant, in the original application (by reference to her affidavit filed 20 October 2025), refers to a revised index annexed to an order made on 15 September 2025 which I note is different to the revised index at the front of the 290-page appeal book which includes 18 numbered documents. In the original application, the appellant sought the following amendments to the appeal book:

(a) The deletion of the order made by Kari J on 18 August 2025 (a procedural order) and reasons for same (the reasons are not included in the appeal book);

(b) The inclusion of:

(i) The submitting notices filed by other parties;

(ii) "Exhibit #1H6 August 2025 H2 Response to email, admission documented at 32[5] of the Transcript";

(iii) The amended Notices of Appeal;

(iv) "Given the Appealed judgment refers to three other judgements stating they should be read with the Appealed Judgment ... that Affidavits provided in the proceedings be included in the Appeal Book where those other judgments does [sic] not adequately consider those Affidavits in its deliberations but makes comments about the factual scenario which these sought [sic] affidavits are relevant to" ;

(v) The husband's affidavit filed on 2 May 2025;

(vi) The husband's affidavit filed on 23 May 2025 which "contained" an affidavit of the husband "affirmed" on 12 May 2025;

(vii) The husband's affidavit filed on 25 July 2025;

(viii) The husband's affidavit filed on 28 July 2025.

1. In the application for review, the appellant seeks that the appeal book "be amended as detailed in the Application in an Appeal dated 20 October 2025 [and] written submission of the [appellant] dated 28 October 2025" (as per original). In her written submissions, the appellant states:
   1. Given the Appealed Judgement explicitly states that it should be read with three other judgments then evidence adduced in those other hearings engendering each of those judgments should be adduced if the evidence had not been adequately considered in those judgments and are therefore important to provide the necessary background context.

21. Those affidavits have been listed in the Affidavit of the [appellant].

(Footnote omitted)

1. The affidavit referred to in paragraph 21 of the appellant's written submissions is the appellant's affidavit filed on 20 October 2025 and the footnote to paragraph 21 indicates that reliance is placed on paragraphs 32-36 of that affidavit. The affidavits referred to therein are those identified in paragraph 19(b)(v)-(viii) in these reasons.
2. Pursuant to r 13.20 of the rules, unless otherwise ordered, the appeal book must contain only:

(a) the documents put in evidence at the hearing or trial to which the appeal relates, including the orders, applications, affidavits and exhibits relevant to the grounds of appeal or contention and necessary to enable the court hearing the appeal to reach its decision; and

(b) if the appeal involves a challenge to the exclusion of evidence - the document:

(i) that is the subject of the challenge; and

(ii) that was tendered, but not admitted as evidence, at the hearing or trial to which the appeal relates.

1. It must be remembered that the appeal relates solely to the order made on 6 August 2025 (the removal of the caveat) not to the order made on 10 July 2025 (sale of [Lots 1 and 2]).
2. Submitting notices and amended Notices of Appeal do not fall into any category identified in r 13.20 although the original Notice of Appeal is included in the appeal book (as it is in this appeal). The third amended Notice of Appeal filed on 29 September 2025 will be before the Full Court when this appeal is heard.
3. The exhibit referred to in paragraph 19(b)(ii) of these reasons is an email from the husband to the wife's solicitor dated 5 August 2025, responding to an allegation relating to the administration of a superannuation fund. The appellant has not demonstrated how the document is necessary to enable the court hearing the appeal to reach its decision.
4. I have perused the proposed additional affidavits sought to be included in the appeal book. The appellant has not identified how any of the proposed additional affidavits are necessary to enable the court hearing the appeal to reach its decision.
5. The appellant has not identified any legal basis to preclude the identified Appeal Judicial Registrar from performing their administrative appeal duties.
6. In relation to any deficiency with the appellant's summary of argument, the appellant may seek leave from the Full Court at the hearing of her appeal to advance any issues not identified in her summary of argument filed on 29 September 2025 (r 13.23(4) of the rules).

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew.

[1] The appellant annexes at page 21 of her affidavit filed 20 October 2025 an email from the registrar noting that the reference to 17 September should have been a reference to 15 September.