Nicolescu & Umar [2026] FedCFamC1A 15 (30 January 2026)

Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91

Falydn & Badenoch [2022] FedCFamC1A 170

Fierro & Fierro [2022] FedCFamC1A 72

House v The King (1936) 55 CLR 499; [1936] HCA 40

Tallant & Kelsey [2016] FamCAFC 207; (2016) FLC 93-742; (2016) FLC 93-742

The Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28

Yule v Junek (1978) 139 CLR 1; [1978] HCA 4

1. Leave to appeal from Orders 3 and 8 made by the Federal Circuit and Family Court of Australia (Division 2) on 15 December 2025 be refused and the Notice of Appeal filed on 12 January 2026 be dismissed.
2. The appellant pay the respondent's costs of and incidental to the Notice of Appeal in the agreed sum of $5,500 within 60 days of these Orders.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

1. These reasons for judgment explain why leave to appeal from certain interlocutory orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 15 December 2025 will be refused and the Notice of Appeal filed on 12 January 2026 will be dismissed.
2. On 30 September 2025, an order was made by the Federal Circuit and Family Court of Australia (Division 2), by consent, appointing an agreed clinical psychologist as a single expert to prepare a Family Report in relation the children of the relationship of the applicant and the respondent.
3. A Family Report was duly prepared, dated 10 November 2025, and was annexed to an affidavit affirmed by the joint single expert on 6 December 2025 and filed on 8 December 2025.
4. On 10 December 2025, the applicant mother filed an amended Application in a Proceeding seeking, relevantly, that the Family Report not be admitted into evidence in the proceedings and that another expert be appointed to prepare a new Family Report.
5. On 15 December 2025, the primary judge made orders which relevantly provided that:
   1. The parties and the Independent Children's Lawyer have leave to conference [sic] with the Single Expert ... and jointly put specific written questions to the expert to clarify aspects of her Report dated 10 November 2025 with such steps to be taken by no later than 1 March 2026.

...

1. All interim applications are otherwise dismissed.

1. On 12 January 2026, the applicant filed a Notice of Appeal, seeking leave to appeal Orders 3 and 8 on the grounds that:
   1. The trial judge [sic] erred in failing to appoint a new single expert to provide a new family report.
   2. The trial judge [sic] erred in making an order granting leave to the parties to conference with the single expert and jointly put specific written question to the expert to clarify aspects of her report.

1. On 14 January 2026, the applicant and the other parties were given notice of a show cause hearing, listed this day. The purpose of the hearing, as stated in the correspondence from the Court giving notice thereof, was "for the appellant [sic] to show cause as to why the Notice of Appeal should not be summarily dismissed".
2. Putting to one side, for present purposes, the grounds of appeal, which, as drawn, do not identify an error of the kind required by the High Court in House v The King (1936) 55 CLR 499 at 504-505, the impediment to the proposed appeal, which gives rise to the need for the show cause hearing, is that, pursuant to ss 26(1) and 28(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("FCFCOA Act"), appeals may only arise from a "judgment," which is defined in s 7(1) of the FCFCOA Act to mean--

... 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. The High Court has held that a "judgment" from which an appeal may lie is the "operative judicial act" embodied in a court's orders which resolves the justiciable dispute: Driclad Pty Ltd v Federal Commissioner of Taxation [1968] HCA 91; (1968) 121 CLR 45 at 64.
2. In Yule v Junek [1978] HCA 4; (1978) 139 CLR 1 at 14, the High Court held that -

... an appeal lies from a judicial order, not from a mere answer to a question of law arising in proceedings, in particular an answer which of itself could not be decisive of the rights of the parties unless and until the primary judge dealt with the other questions upon which he reserved judgment.

(Emphasis added)

1. The need for an appellable judgment to be decisive of a party's rights has been consistently affirmed by this Court. See, for example, Fierro & Fierro [2022] FedCFamC1A 72 at [15]-[16] and Beale & Harvie [2023] FedCFamC1A 181; (2023) 69 Fam LR 294 at [11]-[13].
2. In Conner & Conner (No 2) [2025] FedCFamC1A 223, in dismissing an application for leave to appeal, the Full Court of the Federal Circuit and Family Court of Australia (Division1), referring to The Commonwealth v Mullane [1961] HCA 28; (1961) 106 CLR 166 at 169, most recently said at [18]:

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]).

1. In that case, the orders the subject of the proposed appeal related to the preparation of a psychiatric assessment and report in the conduct of parenting proceedings.
2. Both Fierro & Fierro and Beale & Harvie involved applications for leave to appeal the dismissal of applications to discharge an Independent Children's Lawyer.
3. In Fierro & Fierro, Austin J held that the dismissal of the application did not determine in any way any of the applicant's legal rights. His Honour said at [16]:

In this instance, the primary judge merely ruled on a procedural question - whether or not Ms E could remain the appointed ICL - and did not resolve the parties' rights in any way. The parties' claims for relief in respect of the subject child within the cause under Pt VII of the Act in the underlying proceedings are yet to be heard and determined. The dismissal of the application to remove Ms E as the ICL is not a "judgment" from which any appeal competently lies.

1. In Beale & Harvie, Austin J said at [4] that "apparent incompetence of the appeal necessitate[d] early attention being given to it to avoid the Court's resources being wasted and the father and the ICL wasting costs in opposing it". His Honour further said at [12] that parties do not-

... have a right to an order discharging an ICL with whom they are dissatisfied, though they are free to make an application for such an order (Lloyd v Child Representative (2000) FLC 93-045 at 87,687). If the Court dismisses the discharge application, there is no infringement of the litigant's rights which can be vindicated by an appeal from that discretionary procedural order.

1. Any distinction between an application to discharge an Independent Children's Lawer and an application to discharge a single expert Family Report writer is illusory; it is a distinction without a difference.
2. In Tallant & Kelsey [2016] FamCAFC 207; (2016) FLC 93-742, the mother appealed against a ruling admitting an expert psychologist report into evidence. She had objected to the report being admitted; however, her objection was overruled and the report became evidence in the trial. Ryan J (with whom Ainslie-Wallace and Cronin JJ agreed) said at [21]-[22]:

21. Much more could be said about the issue, but it is sufficient to observe that following Mullane rulings on the admissibility of evidence have routinely been held not to be interlocutory judgments (or orders or decrees) which are amenable to appeal (see the decision of R A Hulme J in A2 v R; KM v R; Vaziri v R [2015] NSWCCA 244 with whom Beazley P and Bellew J agreed; Lawrance v The Commonwealth of Australia [2007] FCA 1524).

22. Her Honour's decision did not determine the proceedings or an identifiable part of them. It was a decision which could be varied without the intervention of an appeals court. It is telling that the decision would not be entered in the records of the Court. In my view, the facts of this case are on all fours with the decision in Mullane and no appeal lies against the decision of the primary judge.

1. Unlike Fierro & Fierro and Beale & Harvie, Tallant & Kelsey was decided prior to the enactment of the FCFCOA Act, which now provides that appeals only lie from "judgments". Prior to 1 September 2021, when appeals were governed by the now repealed Part X of the Family Law Act 1975 (Cth) ("FLA"), appeals were brought from a "decree", which was defined in s 4(1) to mean a "decree, judgment or order" and included an order dismissing an application and a refusal to make a decree or order.
2. However, in Falydn & Badenoch [2022] FedCFamC1A 170 at [12]-[15], Austin J said:
   1. The commonality between the definitions is obvious, but there are differences. Specifically for present purposes, a "judgment" includes a "decision", whereas a "decree" did not.
   2. However, the amendment providing for appeals to be now brought from judgments instead of decrees should not be thought to represent an intended expansion of appellate jurisdiction over any "decision" made in the exercise of original jurisdiction. The Explanatory Memorandum presaging the Federal Circuit and Family Court of Australia Bill 2019 (Cth) said this about the clause which subsequently became s 26 of the FCFCA Act, strongly emphasising the lack of any Parliamentary intention to change the existing ambit of appellate jurisdiction:
      1. This clause reflects the retention of the existing Family Court's appellate jurisdiction in the FCFC (Division 1).
   3. Without the FCFCA Act expressly saying otherwise, there is no room to impute any intention by the Parliament to overrule decades of jurisprudence emanating from the High Court of Australia about the constricted meaning of "judgment". No such express intention is evident within the legislation, particularly given the provisions of the Explanatory Memorandum.
   4. The inclusion of the word "decision" cannot rationally broaden the definition of "judgment" to such width that it covers any decision on any issue within the litigation - whether substantive, procedural or administrative - so as to qualify it as a judgment from which an appeal lies, either as of right or subject to the grant of leave to appeal. Rather, the word "decision" should be read commensurately with the other forms of defined judgment, covering only judicial decisions which are in some way decisive of litigants' rights, even if only on an interim basis.

1. In Falydn & Badenoch, the primary judge had made orders appointing a psychiatrist as a single expert to provide expert opinion evidence in parenting proceedings. The father had opposed the appointment of that psychiatrist and had proposed a different psychiatrist. The father sought to appeal those orders. Austin J said at [17]-[19]:
   1. In this instance, the primary judge merely made an interlocutory ruling on which one of three eligible psychiatrists would be appointed as the single expert. The ruling did not determine any legal right which one party could exert against the other. Neither party had the "right" to the appointment of a single expert, but once accepted a single expert should be appointed, neither had the "right" to the appointment of their preferred candidate nor the "right" to veto the other's choice or the expert eventually selected. The decision was merely one about how the litigation would best be conducted to facilitate adjudication of the parties' rights under Pt VII of the Act. The decision is not a "judgment" from which an appeal lies.
   2. While the father may be dissatisfied with the psychiatrist selected by the primary judge for the role of single expert, he is not without redress. For example, if dissatisfied with the content of the single expert report subsequently furnished, he may confer with or pose questions to the single expert in advance of trial (Div 7.1.6 of the Rules). He could also seek the appointment of an adversarial expert, if certain conditions are met (r 7.08 of the Rules). At trial, he may test the validity of the single expert's opinion evidence via cross examination.
   3. It remains possible the father will eventually be satisfied with the opinion evidence given by the single expert, but assuming he is not, he may successfully persuade the primary judge that such evidence should be given little or no weight. Any evidence ultimately given by the single expert is not binding upon the primary judge.
2. So too, in the present case, the primary judge merely made an interlocutory ruling that did not determine any legal right which one party could exert against the other and, as such, it is not a judgment from which an appeal lies. As Austin J observed in Falydn & Badenoch, whilst the applicant may be dissatisfied with the single expert, she is not without redress. Indeed, order [3] made by the primary judge provides, as Austin J suggested, for the parties to confer with, and pose questions to, the single expert. Conceivably, she might also be able seek the appointment of an adversarial expert, if certain conditions are met (r 7.08 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)). At trial, she may test the validity of the single expert's opinion evidence by cross-examination.
3. Further, as Austin J observed in Fierro & Fierro at [20]:

It may be that, once orders are finally pronounced under Pt VII of the Act to conclude the parties' substantive dispute, the applicant will be satisfied and no appeal will result. Even if he is dissatisfied, in any appeal brought from those final orders it might still be open to challenge the primary judge's interlocutory refusal to discharge Ms E, provided certain conditions are met (Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 482-484 and 494-497).

(Emphasis in original)

1. Notwithstanding notice of the show cause hearing having been given to the parties on 14 January 2026, it was only at 3.16pm on the eve of the hearing, more than a fortnight later, that submissions were filed on behalf of the applicant.
2. At paragraph 2 of the applicant's submissions, it was correctly apprehended that the orders the subject of the proposed appeal are not decisive of either of the parties' rights. Nevertheless, the submissions then proceed to address the issue of the best interests of the children. However, s 60CA of the FLA has no relevance to the present issue. That section provides that -

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

1. A "parenting order" is defined in s 4(1) of the FLA to have the meaning given by s 64B(1), which relevantly provides that such an order is:

(a) an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or

(b) an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).

(2) A parenting order may deal with one or more of the following:

(a) the person or persons with whom a child is to live;

(b) the time a child is to spend with another person or other persons;

(c) the allocation of parental responsibility for a child;

(d) if 2 or more persons are to share parental responsibility for a child - the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

(e) the communication a child is to have with another person or other persons;

(f) maintenance of a child;

(g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:

(i) a child to whom the order relates; or

(ii) the parties to the proceedings in which the order is made;

(h) the process to be used for resolving disputes about the terms or operation of the order;

(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).

Note: Paragraph (f) - a parenting order cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989 applies.

1. It is, therefore manifest, that neither of the orders the subject of the proposed appeal is a parenting order, the making of which is subject to s 60CA.
2. The applicant's submissions also refer to Bass & Bass [2008] FamCAFC 67; (2008) FLC 93-366. However, that too is of no assistance to her. That case similarly involved an application for leave to appeal the dismissal of an application to discharge a single expert witness, who had prepared a report for use in parenting proceedings, and for permission to adduce further evidence from another expert witness. For reasons which are not apparent, in that case, the issue of the competence of the proposed appeal was not raised or considered by the Full Court. It should have been, and the fact that it was not does not advance the applicant's case.
3. In any event, notwithstanding the applicant's reliance upon Bass & Bass, leave to appeal was, in fact, refused by the Full Court in that case, on grounds not dissimilar to the observations of Austin J in Falydn & Badenoch at [18]-[19]. The Full Court (Finn, Warnick and Thackray JJ) at [48] described the application before the primary judge and, accordingly, the application for leave to appeal, as having a "premature quality" for two main reasons:
   1. Notwithstanding the important issues raised in the submissions of senior counsel for the father, we are not persuaded that we should grant leave to appeal in this case. As we indicated during the hearing before us, we consider that both the application made to Steele J, and thus the application for leave to appeal, have what can best be described as a premature quality. We take this view for two main reasons.
   2. First, Division 15.5.6 of Part 15.5 [of the Family Law Rules 2004] provides a procedure for clarifying matters contained in a report prepared by a single expert witness. It was confirmed before us that that procedure had not so far been employed in this case. While we acknowledge that procedure may only be of limited assistance to the father given the nature of his complaints, we are nevertheless, of the opinion that that procedure ought to have been attempted before the application was made to Steele J, or to this Court.
   3. Secondly, and perhaps more significantly, the assertion of bias, be it apprehended or actual, on the part of the single expert, will best be able to be established through cross-examination of the single expert at the trial of the parenting proceedings, as indeed was recognised by Steele J. Following such cross-examination, all or parts of the expert's report may be rejected or given only limited weight by the trial Judge. It is not particularly unusual, in our combined experience, for trial Judges not to accept, or to only give limited weight to, the opinion of a single expert in a children's case.
   4. It would, of course, remain open to the ultimate trial Judge to adjourn the trial for the purpose of obtaining another expert report, if he or she considered that the matter could not be satisfactorily determined without such assistance. We appreciate that such a course, if it had ultimately to be adopted, would have disadvantages to all involved in the case. But in our view, those disadvantages would be outweighed by the disadvantages of permitting a second expert to be engaged whenever a party to parenting proceedings is the subject of an adverse single expert report (as the father has been in this case). In this regard it must be remembered that for an expert to be able to give satisfactory evidence in relation to arrangements for child [sic], it is generally necessary for the expert to have conducted an interview with the child - a procedure which should be sparingly employed (as was, in effect, submitted by the Independent Children's Lawyer).
   5. Certainly no error of principle on the part of Steele J in his application of R [sic] 15.49 has been established. It must be remembered in this regard that his Honour was not determining the applications before him as the trial Judge of the parenting proceedings, but rather on an interlocutory basis only.
   6. Nor are we satisfied that any substantial injustice has been occasioned to the father. As we have indicated, he still has avenues available to him to challenge Professor Q's opinions, both prior to and during the course of the trial of the parenting proceedings.
4. Further, and not dissimilarly to what Austin J said in Fierro & Fierro at [20], the Full Court said at [54]:

To the extent that the basis for a grant of leave to appeal in this case was submitted to be the existence of issues of general importance (including the validity of the relevant Rules), these matters would, in our view, be far more satisfactorily determined in the context of an appeal proper against parenting orders made after the conclusion of a trial, and in which the appellant considered that he or she had not been permitted to adduce all evidence relevant to the best interests of the subject child, or that a single expert's evidence should not have been accepted on the basis of bias, actual or apprehended.

1. In response to the applicant's belated submissions, the respondent filed submissions at 8.06am this day. Unsurprisingly, the respondent seeks the dismissal of the proposed appeal. However, his submissions are of little assistance as they do not engage with the fundamental point which gives rise to this show cause hearing, namely, the incompetence of the proposed appeal.
2. Although the Independent Children's Lawyer did not file a submitting notice, she advised the Court at the commencement of the hearing this day that she would submit to any order that the Court might make.

1. In circumstances where no appeal competently lies from the orders the subject of the proposed appeal, the application for leave to appeal will be refused and the Notice of Appeal will be unsurprisingly dismissed.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum.