Judge failed to consider parties’ wishes – procedural fairness

In KDSP v Secretary of the Department of Home Affairs [2022] FCA 1406 (23 November 2022), the Federal Court (Kenny J) refused an application for confirmation of the order – made by the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA Div.2) – to transfer certain proceedings to the Federal Court of Australia (at [4] and [6]).

Rule 8.02(4)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the Rules) required the judge of the FCFCOA (Div.2) to have regard to the parties’ wishes in making the transfer order. This did not occur.

The respondents did not receive an opportunity to make their wishes known in relation to the transfer before the judge made the transfer order. As a result, the judge was unable to take the respondents’ wishes into account as required. The FCFCOA (Div.2) therefore denied the respondents procedural fairness and failed to have regard to a mandatory relevant consideration (at [29]).

The Federal Court refused to confirm the transfer order for reasons including the uncertainty associated with the effect of the order. The transfer order was not made in conformity with r8.02(4)(e) of the Rules and s153(3)(a) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

The FCFCOA (Div.2) is not a superior court of record. If the transfer order was made without jurisdiction, then it has no legal force as an order of that court. The effect of the transfer order in this matter was uncertain, and this factor also contributed to the Federal Court’s decision to refuse the application for confirmation of the order (at [32]).

Nadia Stojanova is a barrister at the Victorian Bar, ph 0480 254 662 or email The full version of these judgments can be found at Numbers in square brackets refer to a paragraph number in the judgment.

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