Australian Federal Courts (26 October 2026)

Send us Fan Mail Ten decisions in the Federal Courts edition for Monday 26 October 2026: five from the Federal Court of Australia and five from the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction, the five family appeals with Judicial Ledger headnotes. The opening story: how the Federal Court decides whether to stay or defer a ground foreclosed by Full Court authority while the High Court has the same point on special leave, and when silence about immigration detention in a s 501BA Migration Act cancellation is, and is not, jurisdictional error. The synopsis states no outcome, and the High Court appeal is pending. Then the family appeal list's gates: a harmful proceedings order restrains starting an appeal, so leave comes first; the s 102NA cross-examination protection is not legal aid; and two lessons in appellate craft, the summary of argument and further evidence on appeal. The five family appeals also feature in today's Court of Appeal brief. The parenting matters are reported as legal doctrine only; court pseudonyms are not voiced. Public Law Desk (opening story). Fred-Tutavaha v Assistant Minister for Citizenship, Customs and Multicultural Affairs [2026] FCA 1586 (Hill J, 26 October 2026) - Signal: Illustrative. A framework for deciding whether to defer or stay determination of a ground precluded by existing Full Court authority where the High Court has granted special leave on the same issue, reconciling Garratt [2026] FCA 1340 and Mukhtar [2026] FCA 1337 and applying the adjournment factors in Assistant Minister for Immigration v Hood (Adjournment) [2026] FCAFC 98; (2026) 317 FCR 178 (likely effect of the appeal on the outcome, nature of the hearing, prejudice to each party), including whether the applicant would succeed on other grounds and whether an appeal lies as of right. Under s 501BA of the Migration Act 1958 (Cth) the Minister must correctly understand the legal consequences of cancellation; omission of express reference to immigration detention does not of itself give rise to an inference of non-consideration (BVD17 v Minister for Immigration and Border Protection [2019] HCA 34), but cases with barriers to removal, such as non-refoulement obligations, may require express consideration of extended detention (Kerr [2026] FCA 726; Kim [2026] FCA 1243); signed briefing materials as evidence the consequences were appreciated. The edition's synopsis states no outcome. The High Court appeal on the same issue is pending; nothing is predicted. JADE Family Law Desk (harmful proceedings orders and the cross-examination protection; children's matters, reported as legal doctrine only). Vanetti [2026] FedCFamC1A 185 (McClelland DCJ, Schonell and Curran JJ, 19 October 2026) - JL p. 15. The restraint in a harmful proceedings order extends to the institution of an appeal, so leave under s 102QAE of the Family Law Act 1975 (Cth) is required, and the Div 1B gateway governs the appellate court's decision whether to grant leave to appeal. The applicant bears the onus under s 102QAG(1); an appeal instituted without reasonable grounds is vexatious and must be dismissed under s 102QAF(2). The supporting affidavit substantially complied with s 102QAE(3); grounds that the primary judge arguably overstated the father's decision-making powers under the final orders had reasonable prospects. Leave granted to appeal the orders of 21 August 2026 on Grounds 1, 2, 4, 5 and 6; refused for the March 2025 orders. The appeal proceeds; nothing is predicted. JADE Sallings [2026] FedCFamC1A 187 (Schonell J, 20 October 2026) - JL p. 13. Leave sought under s 102QAE by a person subject to a harmful proceedings order: none of eight grounds had reasonable prospect