Basu & Misra (No 2) - [2025] FedCFamC1A 76

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Basu & Misra (No 2) [2025] FedCFamC1A 76

Appeal from: Misra & Basu [2024] FedCFamC2F 1231

Appeal number: NAA 257 of 2025

File number: DGC 927 of 2023

Judgment of: AUSTIN J

Date of judgment: 2 May 2025

Catchwords: FAMILY LAW – APPEAL – Divorce – Application in an Appeal – Stay – Where the wife’s appeal from a divorce order was dismissed – Where by operation of s 55 of the Family Law Act 1975 (Cth) (“the Act”) the divorce order was to take effect one month after that dismissal – Where on the final day the wife served upon the Court an application for special leave to appeal to the High Court of Australia and filed an application seeking the stay of the dismissal of her appeal and the divorce order pending the disposition of her application for special leave – Where an application for special leave is made pursuant to s 55 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and s 35A of the Judiciary Act 1903 (Cth) and is not an “appeal” for the purposes of s 55 of the Act – Where the divorce order has since become operable by force of statute – Where it is now impossible to grant the stay she seeks – Application dismissed.

Legislation:
Acts Interpretation Act 1901 (Cth) s 36

Family Law Act 1975 (Cth) Pt X, ss 55, 60, 94AA, 95

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 28, 55

Judiciary Act 1903 (Cth) s 35A

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 15.04, 15.05

High Court Rules 2004 (Cth) rr 4.02, 41.02

Cases cited:
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39

Basu & Misra [2025] FedCFamC1A 35

Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Number of paragraphs: 16

Date of hearing: 2 May 2025

Place: Newcastle (via video link)

The Applicant: Litigant in person

Solicitor for the Respondent: Singh & Co Lawyers
ORDERS

NAA 257 of 2025
DGC 927 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS BASU

Applicant

AND:
MR MISRA

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

2 MAY 2025

THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 8 April 2025 is 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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Basu & Misra (No 2)

Details

AGLC: Basu & Misra (No 2) [2025] FedCFamC1A 76
Case: [2025] FedCFamC1A 76
Decision Date: 2 May 2025

CaseChat Overview and Summary

In the case of Basu & Misra (No 2), the wife sought to stay the operation of a divorce order made in favour of her husband, pending the determination of her application for special leave to appeal to the High Court of Australia from the dismissal of her earlier appeal from that order. The application was dismissed by Austin J of the Federal Circuit and Family Court of Australia. The legal issues before the Court were whether the Court had the power to make the stay order and, if so, whether it should be made. The Court concluded that the application could not be granted because there was no power to make the stay order. The statutory definition of “appeal” under the Family Law Act 1975 (Cth) does not extend to include an “application for special leave to appeal” and therefore the operation of the divorce order could not be postponed whilst an application for special leave to appeal was pending.

The Court also noted that the application for special leave was filed several days outside the limitation period and had not yet been granted an extension of time for it to be considered. The Court therefore concluded that it was impossible to grant the stay the wife sought. The Court dismissed the application in an appeal filed on 8 April 2025. This order is subject to review to remedy minor typographical or grammatical errors or to record a variation to the order.

Orders

Orders of the court

NAA 257 of 2025

DGC 927 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS BASU

Applicant

AND:

MR MISRA

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

2 MAY 2025

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 8 April 2025 is 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 dismissal of an application to stay the operation of a divorce order, found to be valid by a judge of this Court in the exercise of appellate jurisdiction under the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”), pending the determination by the High Court of Australia of an application for special leave to appeal.Background On 6 September 2024, a divorce order was made, granting the husband’s application over the wife’s objection, by a judge of the Federal Circuit and Family Court of Australia (Division 2). The order was expressed to take effect on 7 October 2024, but that was the date upon which the order would have ordinarily taken effect anyway under s 55(1)(a) of the Family Law Act 1975 (Cth) (“the Act”). The wife appealed on 4 October 2024, which had the consequence of postponing the operation of the divorce order whilst the appeal was pending (s 55(3)(a) of the Act). The wife’s appeal was dismissed with costs by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 7 March 2025 (Basu & Misra [2025] FedCFamC1A 35). The divorce order was therefore due to become operable at midnight on 8 April 2025 upon the expiration of one month from the dismissal of the appeal (s 55(3)(a) of the Act). To calculate that time, the calendar month (r 15.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)) excluded the day the appeal was dismissed (r 15.05(2)) but included the day on which the month ended (s 36(1) of the Acts Interpretation Act 1901 (Cth)). On 8 April 2025, the wife filed an application in the High Court of Australia seeking special leave to appeal from the intermediate appeal judgment of this Court. The special leave application was filed several days outside the limitation period and so now requires the grant of an extension of time for it to be considered (rr 4.02 and 41.02 of the High Court Rules 2004 (Cth)), which has not yet been granted, so far as is known. That same day, contemporaneously with the filing of the special leave application, the wife filed an Application in an Appeal in this Court seeking a stay of the divorce order pending the determination of her special leave application and, if successful, then her substantive appeal to the High Court of Australia.Disposition The application is dismissed because there is no power to make the stay order. The operation of the divorce order was postponed whilst ever there was an appeal pending from the divorce order (s 55(3)(a) of the Act), for which purpose an “appeal” is defined to include an “application for leave to appeal” (s 55(5)(a) of the Act). Importantly, however, the statutory definition of “appeal” does not extend to include, either expressly or inferentially, an “application for special leave to appeal”. There are two reasons for that conclusion: first, the terms of the governing legislation; and secondly, the different nature of the two types of leave application.

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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NAA 257 of 2025 DGC 927 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS BASU Applicant
AND:	MR MISRA Respondent

Appeal from:	Misra & Basu [2024] FedCFamC2F 1231
Appeal number:	NAA 257 of 2025
File number:	DGC 927 of 2023
Judgment of:	AUSTIN J
Date of judgment:	2 May 2025
Catchwords:	FAMILY LAW – APPEAL – Divorce – Application in an Appeal – Stay – Where the wife’s appeal from a divorce order was dismissed – Where by operation of s 55 of the Family Law Act 1975 (Cth) (“the Act”) the divorce order was to take effect one month after that dismissal – Where on the final day the wife served upon the Court an application for special leave to appeal to the High Court of Australia and filed an application seeking the stay of the dismissal of her appeal and the divorce order pending the disposition of her application for special leave – Where an application for special leave is made pursuant to s 55 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and s 35A of the Judiciary Act 1903 (Cth) and is not an “appeal” for the purposes of s 55 of the Act – Where the divorce order has since become operable by force of statute – Where it is now impossible to grant the stay she seeks – Application dismissed.
Legislation:	Acts Interpretation Act 1901 (Cth) s 36 Family Law Act 1975 (Cth) Pt X, ss 55, 60, 94AA, 95 Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 28, 55 Judiciary Act 1903 (Cth) s 35A Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 15.04, 15.05 High Court Rules 2004 (Cth) rr 4.02, 41.02
Cases cited:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 Basu & Misra [2025] FedCFamC1A 35 Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Number of paragraphs:	16
Date of hearing:	2 May 2025
Place:	Newcastle (via video link)
The Applicant:	Litigant in person
Solicitor for the Respondent:	Singh & Co Lawyers

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	2 MAY 2025