Abano & Backus
[2025] FedCFamC1A 53
•27 March 2025
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 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Abano & Backus has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
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.
As the proposed appeal from the orders made on 28 January 2025 was by then statute-barred, the applicant filed an Application in an Appeal on 26 February 2025 (in appeal suit NAA 72 of 2025) seeking an extension of time within which to appeal from those orders. The extension application was heard by the appeal registrar on 10 March 2025 and subsequently dismissed on 17 March 2025. The appeal registrar made these two orders:
1.The Application in an Appeal filed on 26 February 2025 seeking an extension of time in which to file a Notice of Appeal against orders made by [the primary judge] on 28 January 2025 in [the financial proceedings] is hereby dismissed.
2.By 4.30pm on Monday, 14 April 2025 the applicant pay the respondent’s costs of and incidental to the above Application in an Appeal fixed in the sum of $1,000.00.
By an Application in an Appeal filed on 19 March 2025, the applicant now judicially reviews the appeal registrar’s decision embodied in those two orders, in support of which he relies upon:
(a)the draft Notice of Appeal, annexed to the extension application filed on 26 February 2025;
(b)the affidavit of his solicitor filed on 26 February 2025 in support of the extension application; and
(c)the affidavit of his solicitor filed on 19 March 2025 in support of the review application.
Legal principles
This review hearing is an original hearing of the applicant’s application, filed on 26 February 2025, to extend the time for filing an appeal from the orders made by the primary judge on 28 January 2025.
The parties acknowledged the legal principles which govern the determination of applications to extend time to appeal were as stated in Whitmore & Whitmore [2022] FedCFamC1A 75 in these terms:
17.Countless decisions have addressed the principles which apply to the determination of applications to extend time to appeal. Inevitably, they all lead back to principles enunciated by the High Court of Australia in Gallo v Dawson (1990) 93 ALR 479 and Jackamarra v Krakouer (1998) 195 CLR 516.
18.Essentially, the applicant seeking the extension of time must demonstrate that there is a substantial issue to be raised in the appeal, for otherwise it is pointless granting the extension of time to bring it. That issue is always central to the inquiry, though other considerations then influence the exercise of discretion. Such other considerations are unconfined but include the extent of the delay, the cogency of the reasons offered by the applicant for the delay, whether hardship or prejudice would accrue to the respondent if an extension of time were granted, and the public policy of ensuring that finalised litigation is not unnecessarily re-opened.
Disposition
It has been formerly held that an order staying civil proceedings until the completion of criminal proceedings is a “decree” which is amenable to appeal (Langley & Tarelli & Anor (No 2) [2020] FamCAFC 126 at [3]–[5]), so it will be accepted for present purposes that an order discharging such a stay order is also a “judgment” capable of being appealed (s 26(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)) and is not simply a procedural ruling which is not decisive of legal rights (Commonwealth v Mullane (1961) 106 CLR 166 at 169; Yule v Junek (1978) 139 CLR 1 at 14, 18, 21 and 26).
Before determining whether there is a substantial issue to be raised in the proposed appeal, it is necessary to understand the reasons given for the orders made by the primary judge and the premises of the intended appeal from the orders.
There was no argument, either before the primary judge or in this appellate hearing, that the stay orders were interlocutory in nature and were amenable to variation if circumstances changed, such as by the unforeseen gross delay in the criminal proceedings being finalised.
Several procedural developments in the financial proceedings were material to the primary judge’s consideration of whether the stay orders should be maintained or discharged. They include these:
(a)in February 2021, the applicant filed an affidavit in the financial proceedings denying the de facto relationship alleged by the respondent (at [8(b)]);
(b)in May 2021, the applicant formally admitted in the financial proceedings that the parties were in a de facto relationship until 2012 (at [8(b)]);
(c)in 2021, the applicant was charged with numerous counts of sexually assaulting the respondent’s daughter (at [10]);
(d)in late-2021, one month after he was charged, the applicant voluntarily filed four affidavits in the financial proceedings, the contents of which were intended to prove he was not in a de facto relationship with the respondent at any point after 2012 (at [3] and [14(c)]);
(e)within the affidavit to which the applicant deposed in late-2021, he denied ever living with the respondent, asserted he was never involved in her children’s schooling or extra-curricular activities, but admitted physical association with the respondent’s children for years after 2012, broadly correlating with the times of his alleged sexual misconduct with her daughter (at [40], [41] and [43]);
(f)later in 2021, the parties informed the Court they were ready for hearing in respect of the threshold issues in the financial proceedings as to when the de facto relationship ended, whether the respondent needed leave to bring her application out of time and, if so, whether she should have such leave (at [14(d)]);
(g)in January 2022, the applicant applied to vacate the trial of the financial proceedings, then fixed for April 2022, and to have the financial proceedings stayed until the completion of the criminal proceedings (at [14(e)]), which application was granted by the stay orders made in March 2022;
(h)in May 2023, the applicant sought and the parties were granted permission to divulge and to use documents filed in the financial proceedings in the criminal proceedings (at [14(h)], [14(i)] and [15]); and
(i)the affidavits filed by the applicant in the financial proceedings in February 2021 and late-2021 were among the documents which could be permissibly furnished to the State prosecutor (at [15]), which aspect of the registrar’s decision was not reviewed by the applicant (at [16]).
After hearing from the parties, the primary judge found: nothing pertaining to the criminal proceedings could be relevantly asked of the applicant in cross-examination in the financial proceedings (at [43]–[45]); if the applicant was asked an objectionable question, it could be overruled due to irrelevance (at [45]); the State prosecutor is already, or could easily be put, on notice of the applicant’s version of past events within his affidavits due to the orders made by the registrar in May 2023 granting the parties permission to use documents from the financial proceedings in the criminal proceedings (at [49]); and the applicant, by voluntarily filing affidavit evidence in the financial proceedings after he was charged in 2021 and by applying for the orders made in May 2023 enabling the use of documents from the financial proceedings in the criminal proceedings, acted inconsistently with the maintenance of his claim to privilege against self-incrimination (at [50]–[52], [56] and [60]).
The primary judge therefore discharged the stay orders and listed the financial proceedings for threshold hearing in April 2025.
The applicant contends in his draft Notice of Appeal that the primary judge’s decision abrogates his “fundamental common law rights, namely his right to silence”, and furthermore, the respondent’s prospective provision to the State prosecutor of the transcript of his oral evidence given in the financial proceedings “undermines his fundamental right to silence in the criminal proceedings”.
Such dramatic contentions were necessarily attenuated during submissions as the applicant was impelled to accept the proposition that nothing said or done by the primary judge could possibly deprive him of the right to defend the criminal prosecution by choosing to remain silent and not give evidence in his defence, which right he retains, irrespective of whether the State prosecutor is furnished with a copy of his oral evidence given in the financial proceedings. Should he elect to put the prosecution to proof and not give evidence, no adverse inference can be drawn against him (s 20 of the Evidence Act 1995 (NSW)).
As submitted, the applicant’s concern truly relates to the preservation of his privilege against self-incrimination in the financial proceedings, the trial of which is the next occasion when he has the need to call the privilege to aid. His wish to contest the financial proceedings, by relying upon his affidavits which deny any de facto relationship beyond 2012, collides with his wish to avoid cross-examination, to which he would then have to submit, as his answers might then be used against him in the criminal proceedings.
During submissions, the applicant conceded the evidence to which he deposed in the affidavits filed in the financial proceedings was not disadvantageous and did not delimit his conduct of the criminal proceedings. His concern relates exclusively to the oral evidence he may give in cross-examination during the trial of the financial proceedings.
The fundamental position eventually advanced by the applicant is that his privilege against self-incrimination is likely to be trammelled by the discharge of the stay orders enabling the financial proceedings to be heard first, though that contention rides upon these assumptions:
(a)he will lead evidence-in-chief in the financial proceedings in the form of the affidavits he has already filed;
(b)he will submit to cross-examination; and
(c)his oral evidence given in cross-examination is then liable to be cause him disadvantage in the criminal proceedings in either of two ways:
(i)first, by the prosecutor adducing evidence of an admission he makes of some fact which is somehow relevant to his alleged sexual impropriety with the respondent’s daughter (assuming he makes an admission against interest); or
(ii)secondly, by his evidence stimulating some further enquiry by the prosecutor which uncovers additional evidence to be adduced against him in the prosecution.
The applicant did not contend his evidence might constrain the way in which he may conduct his criminal defence, either by restricting the way he cross-examines a prosecution witness or by confining the evidence he could give in his defence, to avoid such tactical decisions being contradicted by some prior inconsistent statement made in his evidence.
At its highest, the primary judge’s decision to discharge the stay orders and to hear the financial cause before the criminal trial creates a tactical dilemma for the applicant about how he should conduct the two separate actions. The applicant’s grievance can only be that he should not have to confront the dilemma and he asserts the primary judge’s decision, which causes that dilemma, is wrong for these two reasons: first, the primary judge erred by concluding he would not suffer prejudice if the stay orders were discharged; and secondly, the primary judge erred by concluding he acted inconsistently with the maintenance of his claim to privilege against self-incrimination.
The applicant’s proposed grounds of appeal are pleaded as follows:
1.The primary Judge erred in discharging the stay Ordered by [a named judge] on 2 March 2022 in circumstances where:
(a)the primary Judge erred in concluding that the applicant on appeal [named] would not suffer prejudice if the stay were lifted; …
[particulars omitted]
(b)the primary Judge erred in concluding [the applicant] had acted inconsistently with the maintenance of the privilege against self-incrimination…
(particulars omitted)
(Emphasis added)
As to the first complaint, the applicant alleged he would suffer prejudice due to the chance he might be asked questions in cross-examination in the financial proceedings, the answers to which could disadvantage him in the criminal proceedings. The applicant speculated he might be asked questions about his past opportunities to have the unsupervised care of the respondent’s children, the extent to which he held authority over the respondent’s children at times which correlate with the criminal charges, and the opportunities he had to engage in sexual misconduct with the respondent’s children (at [44]).
The primary judge did not accept questions on those subjects would be relevant to the factual finding required in the financial proceedings about when the parties’ de facto relationship ended and, if it was more than two years before the proceedings were started in 2020, the subsequent determination of whether the respondent should be permitted to press her claim for financial relief out of time. Hence, such questions would be objectionable in the financial proceedings (at [45]–[46], [49] and [60]). The primary judge therefore rejected the applicant’s assertion of prejudice as being more imagined rather than real.
The applicant alleges the primary judge was wrong to so find. As understood, the submissions on this point could be distilled to this: his Honour was wrong to find the applicant would not be prejudiced and should instead have found the applicant could be prejudiced, which lower bar was all he had to surmount. The applicant’s elementary point was that there was a chance he might be asked something objectionable in the financial proceedings and that was enough.
However, to perpetuate the temporary stay of the financial proceedings, the applicant had to do more than simply point to the concurrent pending criminal proceedings and make a bare claim of prejudice. He had to demonstrate how the trial of the financial proceedings on the limited threshold issues is liable to place him at risk of prejudice in the conduct of his criminal defence (Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 (“Zhao”) at [35], [42]–[43], [47] and [49]–[50]). The stay of civil proceedings, which entails a grave interference with the opposing party’s legal rights, requires justification on proper grounds and the balance of justice between the parties (Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union [2016] FCA 504 (“CFMEU”) at [46]–[51]).
The risk of prejudice was “real” and not “merely notional” in Zhao because of the commonality between the civil and criminal proceedings. The civil proceeding comprised an application by the police for the respondent’s forfeiture of property due to it being the proceeds of crime, which alleged crime was the subject of the parallel criminal proceedings.
The primary judge was not satisfied the applicant had shown there was any such genuine risk of prejudice in this case, there being no factual commonality between the two different proceedings, even though the applicant contends for such commonality. Error is not manifest merely from the primary judge taking a quite different view from the former judge in March 2022, who concluded there was a “significant substratum of common facts” in the two sets of proceedings (at [14(g)]). His Honour was not bound by the views of the former judge.
Essentially, the applicant voluntarily asserts in his affidavit that the parties never shared a common residence and they only maintained a friendly association after 2012. He disavows giving any care or support to the respondent’s children after 2012. His admitted intermittent physical association with the respondent and her daughter at times between 2013 and 2020 neither proves nor helps disprove the existence of the de facto relationship or his commission of the alleged sexual abuse. He conceded in this hearing it would be reasonable to assume he would give consistent oral evidence under cross-examination in the threshold trial of the financial proceedings.
As the primary judge concluded, it is difficult to see how the factual indicia of a de facto relationship, prescribed by s 4AA(2) of the Act, which are germane to and confine the ambit of the threshold enquiry in the financial proceedings, genuinely overlap with the factual dispute in the criminal proceedings over whether the applicant had some form of sexual congress with the respondent’s daughter between 2013 and 2020, when he swears no de facto relationship existed. Perhaps the remote possibility of overlap could not be excluded, but the decision required of the primary judge was pragmatic, not abstract.
The primary judge considered any remote risk of the applicant being questioned in a way which compromised his privilege against self-incrimination could be adequately cured by objections being made and sustained to such improper questions. The applicant contended his Honour erred by impermissibly presuming such a remedy would be adequate. He submitted the “ad hoc modification or abrogation” of his right against self-incrimination by such forensic techniques cannot cure the potential disadvantage (Reid v Howard (1995) 184 CLR 1 at 17). However, that submission cannot be accepted in the broad and unconditional way it was put.
The situation at hand is distinguishable from that in Reid v Howard, where the Court of Appeal made orders compelling the appellant to relinquish his privilege in a way the court perceived could be safely reversed if necessary, which forensic solution the High Court found to be an unworthy artifice. In this case, an objection validly made and upheld to any question improperly asked of the applicant in cross-examination would actively preserve his right against self-incrimination. It could hardly be doubted the applicant would be astute to assert his privilege at every properly conceivable opportunity in the financial proceedings.
In CFMEU (at [36]), Middleton J discussed how witnesses claiming refuge in the privilege against self-incrimination could call to aid s 128 of the Evidence Act 1995 (Cth) if asked questions in the civil proceedings calling for answers which threaten their protection by the privilege, to which provision the primary judge referred in a different context (a [37]). The applicant could do so in the financial proceedings. There is an evident difference between using s 128 to avoid answering an occasional errant question and using it to avoid answering any question at all to block voluntary evidence-in-chief being legitimately tested.
The applicant failed to demonstrate a reasonably arguable case for Ground 1(a).
As to the second complaint, the primary judge did not find the applicant “waived” his “right to silence” in the “criminal proceedings”, as the applicant incorrectly alleged in his draft Notice of Appeal. As earlier observed, nothing said or done by the primary judge affects the criminal proceedings. Nor did his Honour find the applicant waived reliance upon the privilege against self-incrimination. Unless and until the applicant is actually asked formal questions, either by an investigating police officer or during cross-examination in curial proceedings, there is no occasion to definitively determine either his claim to protection by the privilege or its waiver.
The primary judge was contemplating, for the purpose of a procedural decision, the consistency of the applicant’s conduct as a factor which would influence the future conduct of the financial proceedings. His Honour found the applicant acted inconsistently with his maintenance of the claim to privilege against self-incrimination because: he filed affidavits giving sworn accounts of his connection with the respondent and her family members up until 2021; he sought an order permitting him to disseminate and use documents filed in the financial proceedings in the criminal proceedings, which application was granted by the orders made in May 2023; and he did not challenge those orders in so far as they permitted the dissemination and use of documents filed by him in the financial proceedings. Consequently, the State prosecutor is already in possession of, or could easily be permissibly furnished with, the applicant’s sworn account of when he physically associated with the respondent’s children during the periods covered by the criminal charges ([50]–[52], [56] and [60]).
The applicant alleges in the draft Notice of Appeal the primary judge failed to precisely identify the applicant’s “evidence or information” provided to the prosecutor, but that is not so. His Honour identified it clearly (at [40]). Even if the prosecutor does not yet have the applicant’s affidavits, the orders made in March 2023 authorise the prosecutor’s provision with them.
The reasons for judgment explain how the evidence voluntarily given by the applicant within his affidavit correlates with the chronology of the charges brought against him (at [41]). The applicant concedes he could have associated with the respondent’s children at or about the times of at least some of the alleged sexual offences. Such evidence might constrain the extent to which he can defend the criminal charges on the factual premise he had no opportunity at all to engage in sexual misconduct with the respondent’s daughter. But that constraint arises from his own forensic decisions, not from the decision made by the primary judge. In any event, the applicant conceded in this hearing he was not concerned with the prosecutor’s possession of the affidavits he has filed in the financial proceedings.
Nevertheless, one factor which swayed his Honour to conclude the applicant had acted inconsistently with the maintenance of his privilege against self-incrimination was that, in a previous aborted criminal trial, the applicant’s lawyer cross-examined the respondent about the correlative relationship between the two sets of proceedings (at [47], [48] and [50]). The applicant submitted that was an irrelevant consideration to the question of whether he had acted inconsistently and it was an error of principle to take it into account, which proposition is at least arguable. It is difficult to objectively appreciate how the applicant’s cross-examination of the respondent as a prosecution witness in an aborted criminal trial manifests conduct by him which is incompatible with his intended resort to the privilege against self-incrimination. The respondent was unable to logically explain how or why it was a relevant consideration.
There is a residual question about the materiality of the supposed error (Conway v The Queen (2002) 209 CLR 203 at 207–208, 217, 219–220, 232 and 244), given how the finding about the applicant acting inconsistently with his maintenance of the privilege rested on other factors (at [50]–[52] and [56]), but decisions are not necessarily upheld because other reasons would have been sufficient to support them (De Winter v De Winter (1978) 4 Fam LR 583 at 588). The reasoned determination of that materiality issue is more properly left to the substantive appeal rather than it being the subject of an interlocutory decision on incomplete argument. Suffice to say at this stage, the decision to discharge the stay orders rested, in part, on the conclusion the applicant acted inconsistently with the maintenance of his privilege against self-incrimination, so it was an influential factor.
The applicant therefore demonstrated a reasonably arguable case for Ground 1(b), in which event there is an issue which merits consideration in the proposed appeal.
As for other discretionary considerations which conceivably affect the extension application, it was undoubtedly prompt because it was made within one day of the expiration of the appeal limitation period. The respondent did not assert she would be prejudiced by the applicant being permitted to bring the appeal one day late.
The review application succeeds. The orders made by the appeal registrar on 17 March 2025 are set aside. The appeal registrar is directed to forthwith file the draft Notice of Appeal dated 26 February 2025, annexed to the extension application.
Although potential merit is discerned in only Ground 1(b), the applicant will still be at liberty to prosecute the grounds of appeal as pleaded. Under r 13.10(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the applicant is entitled to amend the grounds of appeal until the date fixed for the filing of his Summary of Argument.
The applicant applied for his costs of the application to be costs of the appeal, which order is made.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 27 March 2025
0
14
5