Emerton & Lynd

[2025] FedCFamC1A 96

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Emerton & Lynd [2025] FedCFamC1A 96

Appeal from:

Emerton and Lynd [2024] FedCFamC2F 1497

Appeal number(s):

NAA 314 of 2024

File number(s):

BRC 3450 of 2022

Judgment of:

WILLIAMS J

Date of judgment:

5 June 2025

Catchwords:

FAMILY LAW – APPEAL – LEAVE TO APPEAL – PROPERTY – Where the appellant wife sought leave to appeal against a decision refusing to set aside final property orders – Where the appellant failed to comply with filing obligations – Where the appellant alleges failure to file documents is attributable to the conduct of the respondent and ensuing trauma – Where the appellant has previously been granted generous indulgences –  Application for leave to appeal dismissed

Legislation:

Family Law Act 1975 (Cth)

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

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

Cases cited:

Mills & Mills [2022] FedCFamC1A

Number of paragraphs:

46

Date of hearing:

12 May 2025

Place:

Melbourne 

The Appellant:

Litigant in Person

The Respondent:

Litigant in Person

ORDERS

NAA 314 of 2024 BRC 3450 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS EMERTON Appellant
AND:	MR LYND Respondent

ORDER MADE BY:	WILLIAMS J
DATE OF ORDER:	5 JUNE 2025

THE COURT ORDERS THAT:

1.Leave granted to the appellant to rely on her written submissions dated 12 May 2025;

2.The appeal 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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

WILLIAMS J

1. By a Notice of Appeal filed on 21 November 2024, the appellant appeals from all orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) (“the primary judge”) on 25 October 2024 (“the appealed orders”).

2. The appealed orders dismissed the appellant’s application under s 79A of the Family Law Act 1975 (Cth) (“the Act”), to set aside final consent orders made on 17 November 2008 under Part VII of the Act (“the final consent orders”).

3. For the reasons that follow, the appeal is dismissed.

   BACKGROUND

4. The parties separated in October 2004 and divorced in 2006.

5. Subsequent to separation, the appellant filed an Initiating Application seeking both  financial adjustment and parenting orders pertaining to their two children who were born in 1995 and 2001. The respondent filed a Response to the application.

6. On 17 November 2008, four years after separation, final consent orders were made by  a Judge, which concluded both financial and parenting proceedings. At that hearing, both parties were represented by counsel, as was the Independent Children’s Lawyer, who had been appointed to act on behalf of their children.     

7. In March 2022, some fourteen years after the making of the final consent orders, the appellant filed an Initiating Application (“the s 79A application”) seeking to set aside the final property orders. In pursuing her application, the appellant relied upon s 79A(1)(a) of the Act.

8. The appellant contended, that in the original proceeding, the respondent had failed to make full and frank disclosure, had included false statements in his affidavits and had concealed assets of significant value, which she submitted were valued in excess of $13,000,000.

9. In October 2022 the respondent filed a Response to the appellant’s s 79A Application, in which he sought  the appellant’s application be dismissed and she pay his costs.

10. As noted by the primary judge at [11] –[19] of the reasons, there were multiple interlocutory hearings, prior to the final hearing of the s 79A application, which eventually was heard on 24 July 2024.

11. The interlocutory hearings included a hearing on 23 March 2023, when the respondent’s application for summary dismissal of the appellant’s s 79A application was before the court, although that application was not ultimately pursued by the respondent.

12. On 1 September 2023, the appellant’s s 79A application was listed for final hearing but was ultimately adjourned for a variety of reasons. These were because an order was made pursuant to s 102NA of the Act which prevented the appellant cross examining the respondent, allowing the appellant further time to file a trial affidavit, which she had failed to do and to enable the appellant to appeal a costs order, which the primary judge recorded her as having an intention to do.

13. In November 2023 the matter came before the court for a directions hearing and amongst other orders, both parties were permitted to file further evidence in anticipation of the final hearing.

14. In January 2024, during a procedural hearing, the appellant’s s 79A application was fixed for hearing on 24 July 2024.

15. On 24 July 2024 the appellant sought an adjournment of the final hearing for two reasons. First, because the lawyer who had previously been appointed by Legal Aid Queensland pursuant to s 102NA, sought leave to withdraw from acting on the appellant’s behalf. Exhibit 4, as marked by the primary judge, is a copy of the email from Legal Aid Queensland dated 18 July 2024 advising the appellant was not represented through the scheme and that no further solicitors would be appointed to represent her. Secondly, the appellant contended she was medically unfit to proceed with the hearing. Exhibit 3, as marked by the primary judge at trial, is a medical certificate certifying the appellant was “not fit for work/usual duties on 23 July 2024”.

16. The primary judge rejected the appellant’s application for an adjournment because there was little prospect the appellant would be able to secure legal representation, and certainly not through legally aided lawyers and because the medical certificate relied upon by the appellant referred to her inability for 23 July 2024, the day prior to the hearing and not the day of the hearing. At [20] Her Honour observed she did not discharge the s 102NA order because the appellant wanted it to remain in place.

17. The trial was heard by the primary judge on 24 July 2024 and written final submissions were filed on 9 August 2024 (by the respondent), 24 September 2024 (by the appellant), and 27 September 2024 (by the respondent, in reply).

18. On 25 October 2024 the primary judge made orders dismissing the appellant’s application and delivered reasons.

    APPLICATION TO DISMISS THE APPEAL

19. The hearing of the appeal was initially scheduled for 28 April 2025 but was subsequently rescheduled for 12 May 2025. At the appeal hearing, the issue before the court was whether the appeal should be dismissed pursuant to s 32 (3)(f)(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and the relevant rules of court, or whether the appellant should be granted an extension of time within which to file documents and a consequential adjournment of the appeal hearing.

20. At a procedural hearing on 14 January 2025, an appeal registrar made orders for the filing of documents in the appeal. Relevantly, Orders 13, 14 and 18 provide as follows:

    13.The appellant file and serve a summary of argument and list of authorities upon which they seek to rely by 4.30 pm on Friday 28 February 2025.

    14.The respondent file and serve a summary of argument and list of authorities upon which they seek to rely by 4.30 pm on Friday 21 March 2025.

    18.All other documents to be tendered to the bench at the hearing must be sent electronically to the appeal registrar at  […..] and each other party no later than 48 hours prior to the commencement of the hearing.

21. Rule 13.23(2)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) requires an appellant to file a Summary of Argument which sets out each ground of appeal and, in respect of each ground, an articulation of the arguments on points of law or fact in support of the ground.

22. As at the date of the appeal hearing, the appellant had not filed a Summary of Argument in accordance with rule 13.23(2)(a) of the Rules (or at all), nor had she filed a List of Authorities.

    Legal Principles

23. Section 32(3)(f)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides:

    32  Exercise of appellate jurisdiction

    (3)A single Judge (sitting in Chambers or in open court) or a Full Court  of the Federal Circuit and Family Court of Australia (Division 1) may:

    (f)       make an order that an appeal to the Court be dismissed for:

    (i)        failure to comply with a direction of the Court

24. Rule 13.45 of the Rules provides:

    13.45  Dismissal of appeal and applications for non‑compliance or delay

    (1)       This rule applies if:

    (a)       an appeal is not taken to have been abandoned; and

    (b)       a party (the defaulting party) has not:

    (i) met a requirement under these Rules or the Family Law Regulations; or

    (ii) complied with an order in relation to the appeal (including an application for leave to appeal or any other application in relation to an appeal); or

    (iii)shown reasonable diligence in proceeding with an appeal or application.

    (2)       A court having jurisdiction in the appeal or application may:

    (a)       if the defaulting party is the appellant or the applicant:

    (i)        dismiss the appeal or application; or

    (ii) fix a time by which a requirement is to be met and order that the appeal or application will be dismissed if the order imposing the requirement is not complied with; or(3) The court may make an order under subrule (2) on its own initiative if, at least 14 days before making the order, written notice has been given to the parties about the date and time the court will consider whether to make the order.

25. In Mills & Mills [2022] FedCFamC1A 138, McClelland DCJ conveniently summarised authorities relevant to the court’s exercise of discretion under r 13.45. His Honour said:

    5Before addressing the specific circumstances of this case, I will set out the relevant law, which has been usefully summarised by the Full Court in the decision of Bethke & Bethke (2019) FLC 93-906, in particular at [25]–[32]:

    In Jackamarra v Krakouer (1998) 195 CLR 516 at 528, Gummow & Hayne JJ said:

    …when an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way…

    Applying the above principle, the Full Court in Connor & Cosgrove (2017) FLC 93‑769 (“Connor”) found at [25] that:

    …All other things are not equal and it would represent an injustice to the mother to permit the appeal to continue in circumstances where the father would, in all likelihood, not file a summary of argument for at least a further three months…

    In Connor, the Full Court cited (at [17]), with approval, McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553:

    A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.

    Though that case was concerned with time limits for commencing proceedings, the Full Court in Connor stated at [17] that it “nonetheless resonates on the question of delay and justice”.

    Similarly, s 97(3) of the Act states:

    In proceedings under this Act, the court shall proceed without undue formality and shall endeavour to ensure that the proceedings are not protracted.

    Rule 1.04 expresses that the main purpose of the Rules is “to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case”. Further, r 1.08 imposes a responsibility on all parties to “promote and achieve the main purpose” of the Rules by inter alia “ensuring readiness for court events” (r 1.08(c)), “complying with time limits” and “assisting the just, timely and cost-effective disposal of cases” (r 1.08 (e) and (g)).

    As discussed by the Full Court in Connor at [19], r 22.45 of the Rules is mirrored in r 21(2)(b) of the Court Procedure Rules 2006 (ACT), considered by the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 where it was said, at [92], per Gummow, Hayne, Crennan, Kiefel & Bell JJ:

    The purposes stated in r 21 reflect principles of case management by the courts. Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process. In its report in 2000, Managing Justice: A review of the federal civil justice system, the Australian Law Reform Commission noted that: “Over the last ten years Australian courts have become more active in monitoring and managing the conduct and progress of cases before them, from the time a matter is lodged to finalisation”.

    (Footnotes omitted)

    Even allowing for the incarceration of the appellant, he has been given multiple opportunities to prosecute his appeal but has not. He has not filed an Amended Notice of Appeal joining his Trustees as directed by the Registrar since April 2018 (over ten months). Given the procedural history of this matter, the appellant has offered no adequate explanation for his failure to prosecute his appeal.

    6I note that the principles referred to by the Full Court, as reflected in r 1.08 of the then applicable Family Law Rules 2004 (Cth) and Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 are now reflected in ss 67 and 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

26. In this matter, because the appellant failed to comply with Order 13 of the registrar’s orders of 14 January 2025, on 3 March 2025 the appeals registrar emailed the appellant a notice of noncompliance as required by r 13.45(3) of the Rules.

27. During the appeal hearing the appellant stated she “only found yesterday” the noncompliance notice from the appeals registrar. That statement is inconsistent with the appellant’s email to the appeals registrar dated 3 March 2025. In that email the appellant acknowledged receipt of the notice of non-compliance and stated she was engaging a lawyer to prepare the required document (the Summary of Argument).  

28. On the morning of the hearing the appellant attempted to electronically file a document titled “Submissions of the Applicant”. She contended the document set out reasons why the appeal should not be dismissed and why the appeal hearing should be delayed. The appellant also sought to file a copy of her closing submissions, which she relied upon at the hearing below. There was no need to file the closing submissions, as the document is included in the Electronic Appeal Book, and in any event, the attempted filing of the submissions was contrary to Order 18 of the registrar’s Orders of 14 January 2025.

29. The appellant sought leave to rely on her written submissions for the purposes of the appeal hearing, which was initially opposed by the respondent. The respondent subsequently abandoned his opposition. Leave will therefore be granted to the appellant to rely on her written submissions.

30. The appellant’s submissions opposing the dismissal of the appeal fall into numerous categories. These include her ostensible lack of “electronic access” to her apartment and building, including her allegations of the respondent’s involvement in the body corporate proceedings pertaining to her apartment building, her suffering unexpected trauma and events since 21 February 2025, the failure of a solicitor she had engaged to prepare the documents in a timely manner, and her lack of legal representation at the appeal hearing. It still remains unclear what is actually meant by the phrase “lack of electronic access” to an apartment.

31. In seeking the appeal be dismissed the respondent relied upon multiple considerations. These were the appellant’s failure to comply with, and obvious disregard for, court orders notwithstanding she was granted an indulgence to extend the time for filing of a Summary of Argument and List of Authorities, her failure to prosecute the appeal in a timely manner, her previous lack of readiness to proceed with  the substantive s 79A application and the prejudice and resultant injustice to the respondent, should the appellant be granted further indulgence to enable the appeal to proceed.  

32. Turning now to the application of the relevant principles articulated in the authorities, to the facts of this appeal.

33. In her oral submissions augmenting her written submissions, the appellant first contended she had been denied electronic access to her apartment and therefore had not been able to access documents necessary for preparation of her Summary of Argument. For reasons largely unexplained, the appellant attributes her expulsion from her apartment by the body corporate, which she says occurred in February 2025, to the malevolence of the respondent. She holds that belief because of the absence of evidence to the contrary.   

34. Even if it is accepted the appellant could not access her apartment to retrieve documents, the appellant did not explain why she was unable to access the required information electronically when the electronic appeal book was filed by her on 14 January 2025, and a copy of the digital transcript was filed by her on 7 February 2025. Both the electronic appeal book and the digital transcript would have greatly assisted the appellant in the preparation of any Summary of Argument.

35. Secondly, the appellant submitted the trauma she suffered arising from the alleged eviction from her apartment and the dispute with the body corporate in mid-February 2025, precluded her from preparing the requisite documents. She also attributed her asserted trauma to the respondent’s conduct in denying her contact with their children, who are now aged 30 and 24. There was no objective evidence about the asserted dispute with the body corporate, nor medical or psychological evidence to support the appellant’s latter claim.

36. Thirdly, the appellant sought to blame a solicitor she had engaged to prepare the Summary of Argument, because he had ostensibly failed to complete the task by the due date, contrary to his prior representations to the appellant. A copy of the draft Summary of Argument, purportedly created by the previous solicitor and sent to the appellant on 24 February 2025, was attached to the appellant’s written submissions. The attached document titled “Outline of Argument on behalf of the Appellant” cannot possibly be regarded as a Summary of Argument.

1. In any event, the appellant failed to adequately explain why she had not taken any steps to prepare a Summary of Argument herself after being provided with a draft by her solicitor on 24 February 2025, a period of almost 11 weeks prior to the appeal. That is particularly pertinent in the context of the comments of the primary judge at [21], where she refers to the appellant’s legal qualifications and acuity, which would enable her to prepare a Summary of Argument.

2. As at the date of the appeal hearing, the appellant had still failed to file a Summary of Argument, despite preparing her detailed written submissions. She evidently devoted considerable energy and time to the drafting and preparation of that document. The appellant’s time would have been more productively utilised if she had focused on the preparation of a Summary of Argument, rather than the written submissions.

3. Lastly, the appellant submitted she ought to be afforded the opportunity to obtain legal representation to prosecute the appeal and prepare the requisite documents. In her written submissions the appellant stated “last Friday” she had been provided the names of three law firms who may be able to represent her. That submission flies in the face of the refusal of Queensland Legal Aid to provide further assistance to the appellant, because it had previously provided four different lawyers through the cross examination scheme, all of whom were not prepared to represent the appellant, as well as her own statements to the primary judge at [17] stating she had sought representation from “in the vicinity of fifty solicitors, and nobody wants to represent me”. In the context of such a statement, it seems highly unlikely the appellant would realistically be able to secure legal representation any time soon, or at all.

4. The manner in which the appellant conducted herself in the litigation also informs her likely failure to diligently prosecute her appeal and comply with longstanding procedural orders. As  observed above, there were indulgences granted to the appellant at various procedural hearings of the s 79A application, to enable her to obtain legal representation and to file further affidavits. On the second occasion the hearing below was listed for trial, the appellant again applied for an adjournment of the trial [16], which was refused by the primary judge.  

5. As to the prejudice to the respondent if the appeal is not dismissed , the written submission filed by the appellant, state the eventual hearing of the appeal should be delayed until the appellant has  electronic access to her apartment, she has sufficiently recovered from the trauma she has experienced since 21 February 2025, she is able to read recent documents filed by the respondent (which there are none), and to provide reasons and apologise for why she failed to provide a Summary of Argument. During her oral submissions the appellant referred to a reasonable time frame but did not elaborate what that actually meant.

6. The appellant’s submissions do not provide any realistic timetable or projection of the future timeframe for the conduct of the appeal. Permitting the appeal to continue would invite further and unacceptable delay and potential prevarication by the appellant, which would be highly prejudicial to the respondent. That is particularly so when the final consent orders were made in 2008, some 17 years ago and the current s 79A proceeding has endured since early 2022, some three years ago.

7. The appellant has known since 14 January 2025 of the necessity to file a Summary of Argument, and has known since 3 March 2025, that the appeal would likely be dismissed if she failed to file a Summary of Argument. Despite that generous timeframe, as at 12 May 2025, the appellant had still not filed a Summary of Argument, although she managed to prepare a lengthy written submission why the appeal should not be dismissed.  

8. In this appeal, adopting the terminology of the authorities, “all other things are not equal” and it would be a significant injustice to the respondent to permit further indulgence to the appellant. There is no realistic prospect of the appellant securing legal representation, as is evident in the appellant’s submissions to the primary judge, nor is there any prospect of the appellant preparing a Summary of Argument, or prosecuting her appeal in a timely manner.  It is also apposite to again observe the appellant was able to prepare the written submissions, even though she contended she required physical access to documents, she was traumatised, and she had insufficient time to prepare a Summary of Argument.

9. The appeal will be dismissed.

   COSTS

10. Because both parties were self-represented, there was no issue of costs arising from the appeal.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.

Associate

Dated:       5 June 2025