Cusack & Cusack (No 2)
[2024] FedCFamC1A 61
•16 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cusack & Cusack (No 2) [2024] FedCFamC1A 61
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: 16 April 2024 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where procedural orders were made extending time for the appellant to file his Summary of Argument but restraining him from filing an Amended Notice of Appeal without first obtaining leave to do so – Where the appellant seeks leave to file an Amended Notice of Appeal – Conditional leave granted to the appellant to file and serve an Amended Notice of Appeal. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) Pt 2, s 32
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, r 13.38
Number of paragraphs: 23 Date of hearing: Determined in chambers on the papers Counsel for the Appellant: Litigant in person Solicitor for the Respondent: Jackson McDonald Lawyers ORDERS
NAA 1 of 2024
8313 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR CUSACK
Appellant
AND: MS CUSACK
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
16 APRIL 2024
THE COURT ORDERS THAT:
1.Pursuant to Order 3 made on 11 April 2024, leave is granted to the appellant to amend the Notice of Appeal filed on 30 January 2024, but subject to these conditions:
(a)the Amended Notice of Appeal replicates the draft Amended Notice of Appeal annexed as Annexure B to his affidavit filed on 15 April 2024, save for the excision of proposed Orders 3, 8 and 11 from Pt F thereof; and
(b)the Amended Notice of Appeal is filed and served by 4.00 pm AWST on Wednesday 24 April 2024.
2.Otherwise, the Application in an Appeal filed on 15 April 2024 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).
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:
On 11 April 2024, in response to an interlocutory application filed by the appellant in this pending appeal, these orders were made:
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.
For present purposes, only Order 3 is relevant.
Evidently being dissatisfied with Order 3, the appellant filed another Application in Appeal on 15 April 2024 seeking further interlocutory relief, supported by an affidavit filed on the same date.
The appellant requested in the application form that the application be determined in the absence of the parties in accordance with r 13.38 and Pt 5.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), which request is granted.
The application
The appellant seeks these two orders in the Application:
1. That order 3 by Justice Austin on 11 April 2024 be stayed.
2. That the Amended Notice of Appeal dated 15 April 2024, be allowed.
It is apparent from the preceding description of the nature of the relief he seeks at Pt C of the Application that the second order is only sought in the alternative to the first order. The description states:
Application that Order 3 of 11 April 2024 be stayed, in the alternative that the Amended Notice of Appeal be allowed
However, advertence to the appellant’s supporting affidavit reveals that he appears to instead be seeking, first, permission to file an appeal from Order 3 made on 11 April 2024, and secondly, the grant of leave pursuant to Order 3 to amend his current appeal from the orders made by the primary judge on 28 November 2023.
Order 3 made on 11 April 2024
Order 3 was made by a single judge exercising appellate jurisdiction under Pt 2 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”), which specifically empowers single judges to make interlocutory orders in a pending appeal (s 32(3)(c) and s 32(5)). Since Order 3 was made in the exercise of the Court’s appellate jurisdiction, as distinct from original jurisdiction, no appeal lies from it to the Full Court.
Any intended appeal from Order 3 would necessitate an application to the High Court of Australia for special leave to appeal from it (s 55(2)), requiring the appellant to satisfy the criteria within s 35A of the Judiciary Act 1903 (Cth).
It follows that the appellant’s intention to file a Notice of Appeal in this Court, either appealing or seeking leave to appeal from Order 3, is misconceived. Since no appeal to this Court lies from Order 3, there is no juridical basis upon which Order 3 can or should be stayed.
Amendment of Appeal NAA 1/2024
The FCFCA Act empowers a single judge exercising appellate jurisdiction to determine an application for leave to amend the grounds of an appeal (s 32(2)(c)).
The proposed Amended Notice of Appeal annexed to the appellant’s affidavit as Annexure B reveals his intention to revise the contents of Parts C, D, E and F of the existing Notice of Appeal brought from the orders made on 28 November 2023, though the five grounds of appeal remain unchanged.
The appellant deposed this in the text of his affidavit:
17.I note the following in relation to the need to rely on the Amended Notice of Appeal:
a)The Notice of Appeal filed on 30 January 2024 did not outline matters that are relevant to the question of leave to appeal, being that sufficient doubt attends the Judge’s decision to warrant the matters being considered on appeal, and a substantial injustice would result if leave is not granted (Medlow & Medlow (2016) FLC 93-692 at [57]). This has been updated in the Amended NoA; and
b)The overarching 5 Grounds of Appeal remain unchanged, but the underlying errors of law and/or fact has been refined and/or changed after evaluation and consideration of Affidavits, Transcripts, Applications over the 8 court events; and
c)The specificity of the orders sought required update to clarify the grounds of appeal in establishing error in the specific orders appealed from, as opposed to general claim of error.
These Amendments were needed and are fundamental to the Appeal, refer Annexure B.
(As per the original)
Save in three respects addressed below, as the underlying grounds of appeal remain unaltered, the respondent could not reasonably be prejudiced by the amendment of the Notice of Appeal, if limited to particularisation of the grounds, the facts and circumstances which justify the grant of leave to appeal, and the nature of the remedial orders sought if the appeal succeeds.
The first exception is this remedial order sought in Pt F of the draft Amended Notice of Appeal:
3.That, to the extent that the husband’s Appeal of order 3 made by Justice Austin in Chambers on 11 April 2024 have not been set aside or stayed or otherwise pending determination, the Notice of Appeal filed by the husband on 30 January 2024 as subsequently Amended on 15 April 2024, being proceedings NAA1/2024, be allowed.
This appeal lies only from orders made by the primary judge exercising original jurisdiction on 28 November 2023, not from the interlocutory orders made in the appeal on 11 April 2024.
The second exception is this remedial order sought in Pt F of the draft Amended Notice of Appeal:
8.That the hearing of this matter be expedited and the proceedings be remitted for rehearing by the Full Court of the Federal Circuit and Family Court of Australia (Division 1). Just certain orders?
No expedition application has been made and no evidence has been adduced to explain why the appeal hearing should be expedited. The appeal is already listed for hearing before the Full Court five weeks hence on 22 May 2024.
The last sentence of the proposed order is meaningless.
The third exception is this remedial order sought in Pt F of the draft Amended Notice of Appeal:
11.Within 28 days from today, the wife pay the Appellant husband’s costs thrown away as a result of the misconduct in interim proceedings for the period 13 October 2022 to 28 November 2023 in the sum of $55,416, together with 50% of the costs of the valuation expert equating to $8,500.
In the exercise of appellate jurisdiction, the Full Court will not have any power to make a costs order relating to costs incurred by a party in the original proceedings. When the primary judge pronounced the appealed orders on 28 November 2023, his Honour reserved the parties’ costs in relation to the dispute (Order 13). That order is not the subject of the appeal. Nor could it be because it is not decisive of any right. The issue of costs in the original proceedings must be pursued with the primary judge.
Accordingly, the appellant will be granted leave to file an Amended Notice of Appeal replicating that annexed as Annexure B to his affidavit filed on 15 April 2024, save for the excision of proposed Orders 3, 8 and 11 from Pt F thereof.
To avoid prejudice to the respondent, the grant of such leave is conditional upon the appellant filing and serving the Amended Notice of Appeal by Wednesday 24 April 2024.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 16 April 2024
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