Rex & Arata (No 4) [2025] FedCFamC1A 91 (16 May 2025)

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

Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 22 May 2025

1. This is an Application in an Appeal to vacate the hearing date of the appeal of 26 May 2025. The appeal is from both parenting and property orders made on 1 November 2024.
2. On 28 November 2024, the appellant filed a Notice of Appeal which was some 100 pages in length. The matter was listed so the appellant could show cause why the Notice of Appeal should not be struck out. That came before the Court on 13 December 2024 when the Notice of Appeal was in fact struck out and leave was granted to the appellant to file an Amended Notice of Appeal. Such notice was filed on 28 January 2025.
3. On 20 February 2025, the appellant filed an Application in an Appeal seeking to adjourn an upcoming directions hearing because Legal Aid New South Wales had refused her a grant of legal aid. She had appealed against that refusal and the appeal had yet to be determined. She sought an adjournment under s 57 of the Legal Aid Commission Act 1979 (NSW). When the matter came before the Court on 24 February 2025, the respondent signalled he wished to file an Application in an Appeal seeking summary dismissal of the appeal. That intention combined with the outstanding appeal justified an adjournment of the matter until 2 April 2025.
4. The appellant filed a further Application in an Appeal on 25 March 2025 seeking to adjourn the upcoming hearing to consider the proposed summary dismissal. That hearing took place on 2 April 2025. The Application in an Appeal seeking an adjournment of the hearing was dismissed as was the application for summary judgment.
5. The matter was then in a position to be readied for appeal. A procedural hearing was listed before the appeal judicial registrar on 8 April 2025. The appellant filed an Application in an Appeal to adjourn the procedural hearing on 7 April 2025. That was dismissed by the appeal judicial registrar who proceeded to make standard orders to prepare the matter for hearing on a date to be fixed.
6. On 10 April 2025, the appellant became aware that her appeal against the refusal of a grant of legal aid had been refused.
7. The matter was relisted by the Court on 14 April 2025 because an earlier hearing date for the appeal had become available. Justice Austin varied the orders of the appeal judicial registrar to accommodate the earlier hearing date.
8. Included in the orders made by his Honour fixing the matter for 26 May 2025 was a direction the appellant file a Summary of Argument by 9 May 2025. In making these orders, his Honour was cognisant of s 57 of the Legal Aid Commission Act 1979 (NSW) but, as the section permits, found there were special circumstances militating against a long adjournment. His Honour apparently, because he did not mention it and engaged in the consideration of s 57, was not informed that four days earlier the appellant herself had been informed that the appeal pertaining to the grant of legal aid had been refused.
9. Yet another application to adjourn, this time to vacate the hearing of the appeal, was filed on 8 May 2025. The Application in an Appeal was supported by an extensive affidavit which was prepared with the assistance of lawyers that the appellant had engaged on 5 May 2025.
10. Those lawyers were given leave to withdraw from the proceedings this morning because an insoluble ethical issue had arisen which prevented them from continuing to act further.
11. The evidence establishes that the appellant has made some considerable efforts to obtain representation including the raising of funds to do so. Significantly, however, given that the affidavit was prepared by lawyers, there is no affidavit from a lawyer setting out the difficulties in complying with the directions of Austin J.
12. The appellant deposes to there being some difficult personal circumstances in her life including that the parties' eldest son was run over by a motor vehicle in early 2025. The respondent says, more accurately, the son's foot was run over, but be that as it may, I accept that there have been difficulties for the appellant in caring for him. He also, unfortunately, has been an involuntary patient at a health facility since early 2025. All those events of course occurred before the directions were made by Austin J.
13. It appears from the appellant's submissions and her affidavit that a considerable part of the efforts directed towards preparing the matter for hearing has been the obtaining of an affidavit and opinion from an expert forensic accountant as to the valuations relied upon by the respondent at the primary hearing. There is no ground of appeal that would give such a report any relevance.
14. Justice is not a one-way street. There are other people to consider in this matter. Each of the indulgences granted to the appellant so far have resulted in a disadvantage to the respondent. He has been required to incur further costs and expenses.
15. The appellant is continuing to live in the former matrimonial home subject to the property orders made by the primary judge, and is not paying rent, which is something that operates to her advantage and to the respondent's disadvantage.
16. Finally, a significant aspect of the proceedings were the parenting orders for the parties' 10-year-old child. The parties, and in particular the child's best interests, are best served by having appeals from parenting orders dealt with promptly. This is not just for the uncertainty involved, but also if parenting orders are to be amended or reversed on appeal or the matter remitted for rehearing, it is better for those events to happen as soon as possible after the making of the first instance orders rather than after a period where people have settled in or got used to the orders which are then varied.
17. There are four grounds of appeal in the Amended Notice of Appeal. Two concern procedural fairness and two concern apprehended bias. The Amended Notice of Appeal gives extensive particulars of each ground. Ground 1 has five particulars, Ground 2 has three, Ground 3 has 14 particulars, a number of which have sub-particulars, and Ground 4 has 12. It does not seem, therefore, to be an overly onerous task for a Summary of Argument to be prepared expanding on those identified matters.
18. The choice for the Court is either to adjourn the proceedings or not. If they are to be adjourned, the earliest likely appeal date now available would be August of this year, which would mean that judgment would be being given fairly close to one year after the orders were made. That is most undesirable and is certainly not in the child's best interests, nor, it seems to me, the respondent's.
19. I am not persuaded that the airing of the appeal should be adjourned.
20. However, I am prepared to give the appellant one last opportunity to file a Summary of Argument, accepting that she needs some time to do so. That can only be achieved by the respondent not being forced to prepare a Summary of Argument at very short notice. Fortunately, and most cooperatively, senior counsel who is appearing for the respondent on the appeal accepted that he would be in a position to run the appeal even if he got the Summary of Argument at fairly late notice.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge.