Cusack & Cusack

[2024] FedCFamC1A 52

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Cusack & Cusack [2024] FedCFamC1A 52

Appeal from:			Cusack & Cusack [2023] FCWA 273
Appeal number:			NAA 1 of 2024
File number:	8313 of 2022
Judgment of:	AUSTIN J
Date of judgment:	11 April 2024
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks an extension of time to file his summary of argument – Where the appellant accedes to the respondent being given an extension of time to file her summary of argument – Where no prejudice could conceivably be suffered by the respondent if the application is granted – Where the appellant was previously granted permission to expand his summary of argument to 20 pages in length – Where the appellant’s explanation for now seeking to expand his summary of argument to 36 pages is unconvincing – Where the appellant was previously granted permission to file a contentious appeal book – Where the appellant seeks to amend the contentious appeal book – Where the appellant may add to his contentious appeal book those documents identified in his affidavit accompanying the application – Application granted, but only partially and conditionally.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.10 and r 13.23
Number of paragraphs:	18
Date of hearing:	Determined in chambers on the papers
The Appellant:		Litigant in person
The Respondent:		Jackson McDonald Lawyers

ORDERS

NAA 1 of 2024 8313 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR CUSACK Appellant
AND:	MS CUSACK Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	11 APRIL 2024

THE COURT ORDERS THAT:

1.Orders 1 and 2 made by the appeal registrar on 25 March 2024 are discharged.

2.Subject to Order 3 hereof, the time for the appellant’s compliance with Order 7 made on 1 March 2024 is extended to 4.00 AWST on Tuesday 23 April 2024.

3.The operation of r 13.10(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) is suspended and the appellant is restrained from filing any Amended Notice of Appeal without first obtaining leave to do so.

4.The time for the respondent’s compliance with Order 8 made on 1 March 2024 is extended to 4.00 pm AWST on Monday 13 May 2024.

5.Leave is granted to the appellant to file and serve an amended contentious electronic Appeal Book by 4.00 pm on Friday 19 April 2024 (otherwise in compliance with Order 3 made on 1 March 2024), with the amendment being confined to the addition of the following documents:

(a)the respondents “Statement of Truth” filed on 13 October 2022;

(b)the appellant’s affidavit filed on 11 May 2023;

(c)the appellant’s affidavit filed on 19 September 2023; and

(d)costs notifications dated 19 May 2023 and 24 May 2023.

6.The Application in an Appeal filed by the appellant on 9 April 2024 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 Cusack & Cusack has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

AUSTIN J:

1. These reasons explain the determination of another interlocutory application made by the appellant in this appeal.

2. The appellant initially applied on 21 March 2024 for relief from both procedural directions made by the appeal registrar on 1 March 2024 and the effect of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). The application was granted by further procedural orders made by the appeal registrar on 25 March 2024. The parties were given extra time to file and serve their Summaries of Argument and Lists of Authorities and, in addition, the parties were granted permission to extend the length of their Summaries of Argument to 20 pages, thereby suspending the operation of r 13.23(2)(c) of the Rules.

3. On 9 April 2024, the appellant applied for further relief, being: first, another extension of time within which to file Summaries of Argument and Lists of Authorities; secondly, permission for the Summaries of Argument to extend to 36 pages in length; and thirdly, permission to include more documents in the contentious electronic Appeal Book.

4. The appellant requested that the application be determined in the parties’ absence, as permitted by the Rules, which request is granted.

5. The remainder of the application is granted, but only partially and conditionally.

   Extension of time

6. The appeal is listed for hearing before the Full Court on Wednesday 22 May 2024.

7. Presently, the appellant must file his Summary of Argument and List of Authorities by 15 April 2024. He now seeks another extension until 23 April 2024 and accedes to the respondent being given an extension by a similar margin until 13 May 2024.

8. No prejudice could conceivably be suffered by the respondent if the application is granted, provided there is no belated amendment of the grounds of appeal, in which event the application is granted upon condition the appeal is not amended.

9. Rule 13.10(1) of the Rules permits an appellant to amend the grounds of an appeal without permission at any time up to and including the date fixed for the filing of the Summary of Argument. If that rule was allowed to apply, the appellant would be at liberty to amend his grounds of appeal up until 23 April 2024. The appeal was filed on 30 January 2024, pursuant to an extension of time within which to file it, and so the appellant has already had plenty of time within which to contemplate the grounds upon which he wishes to challenge the appealed orders made on 28 November 2023. The appellant did not foreshadow any need or intention to amend the grounds of appeal so the conditional grant of more time to file his Summary of Argument ought not be prejudicial.

10. The operation of r 13.10(1) is therefore suspended as the condition of the appellant having more time to file his Summary of Argument.

    Extension of length

11. Rule 13.23(2)(c) of the Rules provides that Summaries of Argument must not exceed 15 pages in length.

12. The appellant has already been granted permission to expand his Summary of Argument to 20 pages in length, consistently with his first application.

13. His second application to expand the length of his Summary of Argument to 36 pages is explained this way in his supporting affidavit:

    7.As previously mentioned, the parties commenced Court proceedings around October 2022, followed by approximately 8 Court events to date. Consequently, the Court file and relevant case history are extensive (around 2,000 pages in relation to this Appeal).

    8.As stated in the Notice of Appeal, the Appeal covers 5 Grounds of Appeal, at least 5 issues/disputes.

    9.Limiting the Summary of Argument to 20 pages in a situation where there are numerous issues, grounds, and a lengthy case history will work an injustice on the Appellant.

    10.Therefore, I kindly request that the Court approve an amended such that the Summary of Argument for the respective parties do not exceed 36 pages, rather than the 20 pages pursuant to order 3 on 25 March 2024.

    (As per the original)

14. The explanation is unconvincing.

15. The appeal is brought from four interlocutory orders made in a financial cause between the parties. The five grounds of appeal are pleaded and particularised in the Notice of Appeal over some 27 pages. It is inconceivable that the appellant requires another 36 pages to explain the alleged appealable errors.

16. The application is refused. The appellant will be confined to a Summary of Argument capped at 20 pages, which indulgence was granted in response to his first application.

    Amended contentious Appeal Book

17. The appellant was granted permission by the appeal registrar to file a contentious electronic Appeal Book. He now wants to amend the contentious Appeal Book by adding a few extra documents, identified in his accompanying affidavit.

18. The appellant is granted permission to add those identified documents, but he is required to file and serve the amended contentious electronic Appeal Book by the end of next week.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       11 April 2024