Abano & Backus

Case [2025] FedCFamC1A 53

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Abano & Backus [2025] FedCFamC1A 53

Appeal from:  Backus & Abano (No 4) [2025] FedCFamC1F 30
Appeal number: NAA 72 of 2025
File number: PAC 6827 of 2020
Judgment of: AUSTIN J
Date of judgment: 27 March 2025
Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the appeal registrar rejected the applicant’s Application in an Appeal seeking leave to file an appeal out of time – Where the primary judge discharged previous orders temporarily staying the parties’ financial proceedings pending the finalisation of parallel criminal proceedings prosecuted against the applicant – Where the primary judge set the financial proceedings down for trial in April 2025 – Where the criminal proceedings are set down for trial in late 2025 – Where the applicant failed to demonstrate a reasonably arguable case the primary judge erred in concluding the applicant would not suffer prejudice if the stay was discharged – Where the applicant alleges the primary judge took into account irrelevant considerations in concluding the applicant had acted inconsistently with the maintenance of his privilege against self-incrimination, which proposition is at least arguable – Where the respondent did not assert she would be prejudiced by the applicant being permitted to bring the appeal one day late – Orders of the appeal registrar set aside – Where the appeal registrar shall file the Notice of Appeal.  
Legislation:

Evidence Act 1995 (Cth) s 128

Family Law Act 1975 (Cth) Pt VIIIAB, ss 4AA, 44

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.10

Evidence Act 1995 (NSW) s 20
Cases cited:

Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union [2016] FCA 504

Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5

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

Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2

De Winter v De Winter (1978) 4 Fam LR 583

Langley & Tarelli & Anor (No 2) [2020] FamCAFC 126

Reid v Howard (1995) 184 CLR 1; [1995] HCA 40

Whitmore & Whitmore [2022] FedCFamC1A 75

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

Number of paragraphs: 48
Date of hearing: 25 March 2025
Place: Newcastle
Counsel for the Applicant: Mr Pesman SC & Mr Alexander
Solicitor for the Applicant: Campbell Paton & Taylor
Counsel for the Respondent: Mr Lloyd
Solicitor for the Respondent: Matthews Dooley & Gibson

ORDERS

NAA 72 of 2025
PAC 6827 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR ABANO

Applicant
AND:

MS BACKUS

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

27 MARCH 2025

THE COURT ORDERS THAT:

1.The orders made by the appeal registrar on 17 March 2025 are set aside.

2.The appeal registrar shall forthwith file…

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AGLC
Abano & Backus [2025] FedCFamC1A 53
Case
[2025] FedCFamC1A 53
Decision Date

CaseChat Overview and Summary

The parties to the appeal, Mr Abano and Ms Backus, are contesting financial proceedings under the Family Law Act 1975 (Cth). They were in a de facto relationship until November 2020, according to Ms Backus, who commenced the financial proceedings in December 2020. Mr Abano admits the relationship existed but contends it broke down in 2012, which would mean Ms Backus' claim for financial relief is statute-barred. Mr Abano also opposes Ms Backus' leave to bring the proceedings out of time. The primary judge discharged the stay orders that had been in place pending the finalisation of parallel criminal proceedings prosecuted against Mr Abano. The financial proceedings were set for trial in April 2025, while the criminal proceedings are set for trial in late 2025. Mr Abano sought leave to appeal the primary judge's decision, but his application was dismissed. He then applied to review the decision of the appeal registrar, who had rejected his application to extend time within which to appeal. The appeal registrar's decision was subsequently set aside, and Mr Abano's costs of and incidental to this review application were costs of the appeal.

The court was required to decide whether the appeal registrar correctly rejected the applicant’s Application in an Appeal seeking leave to file an appeal out of time. The court also needed to determine if the applicant had demonstrated a reasonably arguable case that the primary judge had erred in concluding that the applicant would not suffer prejudice if the stay was discharged. Additionally, the court had to consider whether the primary judge had taken into account irrelevant considerations in concluding that the applicant had acted inconsistently with the maintenance of his privilege against self-incrimination.

The court found that the appeal registrar had set aside the orders made on 17 March 2025, which had rejected the applicant's application to extend time within which to appeal. The court concluded that the applicant had demonstrated a reasonably arguable case that the primary judge had erred in concluding that the applicant would not suffer prejudice if the stay was discharged. The court also found that the applicant had at least an arguable case that the primary judge had taken into account irrelevant considerations in concluding that the applicant had acted inconsistently with the maintenance of his privilege against self-incrimination. The court further noted that the respondent did not assert she would be prejudiced by the applicant being permitted to bring the appeal one day late.

The court ordered that the orders made by the appeal registrar on 17 March 2025 be set aside. The appeal registrar was instructed to file the Notice of Appeal dated 26 February 2025. The applicant's costs of and incidental to this review application were to be costs of the appeal. The Application in an Appeal filed on 19 March 2025 was dismissed.

Orders

Orders of the court

NAA 72 of 2025

PAC 6827 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR ABANO

Applicant

AND:

MS BACKUS

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

27 MARCH 2025

THE COURT ORDERS THAT:

1. The orders made by the appeal registrar on 17 March 2025 are set aside.

2. The appeal registrar shall forthwith file the Notice of Appeal dated 26 February 2025 (in the form annexed to the Application in an Appeal filed on 26 February 2025).

3. The applicant’s costs of and incidental to this review application shall be costs of the appeal.

4. The Application in an Appeal filed on 19 March 2025 is otherwise dismissed.

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).

Background

Background to the litigation

These reasons explain the disposition of an application to review the decision made on 17 March 2025 by the appeal registrar in exercise of delegated judicial power, refusing an application to extend time within which to appeal from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 28 January 2025.Background The parties are contesting financial proceedings under Pt VIIIAB of the Family Law Act 1975 (Cth) (“the Act”), commenced by the respondent in December 2020. She asserts the parties were in a de facto relationship until November 2020. The applicant admits the de facto relationship existed, but he contends it broke down in 2012, which if true means the respondent’s claim for financial relief is statute-barred (s 44(5)(a)(ii) of the Act). He opposes the grant of leave for the respondent to bring the proceedings out of time (s 44(6) of the Act). In March 2022, another judge ordered that the financial proceedings under Pt VIIIAB of the Act be temporarily stayed pending the finalisation of parallel criminal proceedings prosecuted against the applicant (“the stay orders”). Some months before, in 2021, the applicant was charged with various sexual offences allegedly committed by him upon the respondent’s daughter in the period between 2013 and 2020. The applicant denies the allegations and has entered pleas of not guilty to the charges. The criminal prosecution has encountered considerable delay in the State court, including an aborted trial, though the trial is now listed to begin in late-2025. Evidently, the respondent became tired of waiting for the prosecution to end before pressing ahead with her claim for financial relief. By an Application in a Proceeding filed on 29 November 2024, she sought the discharge of the stay orders and to have the financial proceedings listed for hearing on the discrete anterior issues of the duration of the de facto relationship and the grant of leave to proceed under s 44(6) of the Act, if that proves necessary. The applicant opposed her application. The interlocutory dispute was heard on 18 December 2024. Judgment was reserved and delivered on 28 January 2025. The stay orders were discharged and the trial of the financial proceedings (on the limited issues) was set down to commence on 7 April 2025. On 25 February 2025, the applicant attempted to file a single Notice of Appeal (in appeal suit NAA 65 of 2025) which irregularly purported to appeal from the orders made by the primary judge on 28 January 2025, together with some other orders made earlier on 18 December 2024. It was rejected for filing by the appeal registrar. The rejection and an explanation for why it was not possible to appeal from two different “judgments” in a single appeal was notified to the applicant by the appeal registrar in an email sent on 26 February 2025. The applicant filed an Application in an Appeal to review the rejection of his Notice of Appeal, which was dismissed on 10 March 2025 because the Notice of Appeal was correctly rejected. The parties did not require the publication of reasons for such dismissal.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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