Evelyn & Kozel

Case [2025] FedCFamC1A 171

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Evelyn & Kozel [2025] FedCFamC1A 171

Appeal from: Evelyn & Kozel [2025] FedCFamC2F 804
Appeal number: NAA 252 of 2025
File number: MLC 12933 of 2024
Judgment of: AUSTIN J
Date of judgment: 19 September 2025
Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the primary judge refused the appellant de facto wife leave to commence proceedings for financial relief out of time – Where the appellant’s Initiating Application did not plead the substantive financial relief she sought – Where the primary judge refused to allow the appellant to amend her Initiating Application – Where complaints of denial of procedural fairness are really complaints of discretionary error – Where both parties filed documents setting out the evidence for the resolution of the financial claim – Where there was still an evidentiary premise to permit the assessment of hardship despite the appellant’s failure to particularise her financial claim in her Initiating Application – Where to have permitted the appellant to amend her claim would not have caused the respondent any countervailing prejudice – Where the parties are engaged in allied litigation in respect of their children, the result of which proceedings would inevitably affect the parties’ financial responsibilities – Where the refusal of the appellant’s adjournment and amendment applications was manifestly unreasonable – Where the anterior decision refusing the adjournment vitiates the dismissal order – Leave to appeal granted – Appeal allowed – Application remitted.  
Legislation:

Family Law Act 1975 (Cth) Pts VII, VIIIAB, s 44

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 36

Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited:

Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7

Chong & Kerimowa [2025] FedCFamC1A 158

Edmunds & Edmunds (2018) FLC 93-847; [2018] FamCAFC 121

Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22

Hardwick & Hardwick (No 2) (2022) FLC 94-126; [2022] FedCFamC1A 216

House v The King (1936) 55 CLR 499; [1936] HCA 40

Mawhinney v Australian Securities and Investments Commission and Ors (2022) 405 ALR 292; [2022] FCAFC 159

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

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11

Skelton & Lindop (2022) 64 Fam LR 61; [2022] FedCFamC1A 47

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Number of paragraphs: 43
Date of hearing: 17 September 2025
Place: Newcastle (via MS Teams)
Counsel for the Appellant: Ms Swann
Solicitor for the Appellant: MS Justice Legal
Counsel for the Respondent: Dr Colesmith
Solicitor for the Respondent: JT Lawyers

ORDERS

NAA 252 of 2025
MLC 12933 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS EVELYN

Appellant
AND:

MR KOZEL

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

19 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.Leave to appeal is granted.

2.The appeal is allowed.

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Details
AGLC
Evelyn & Kozel [2025] FedCFamC1A 171
Case
[2025] FedCFamC1A 171
Decision Date

CaseChat Overview and Summary

In this case, the appellant, Evelyn, sought leave to appeal a decision of the Family Court of Australia dismissing her application for an extension of time to bring a claim for financial relief against the respondent, Kozel, under Pt VIIIAB of the Family Law Act 1975 (Cth). The primary judge had refused the appellant leave to commence proceedings out of time because her Initiating Application did not plead the substantive financial relief she sought. The primary judge had also refused to allow the appellant to amend her Initiating Application. The appellant argued that the primary judge had erred in law in denying her procedural fairness, and that the decision was manifestly unreasonable. The respondent opposed the application for leave to appeal.

The court had to decide whether the primary judge's decision to refuse leave to appeal was correct. The court had to consider whether the appellant's Initiating Application was in proper form, and whether the primary judge had erred in denying her procedural fairness. The court also had to consider whether the decision was manifestly unreasonable, and whether the parties' submissions and evidence were sufficient to permit the assessment of the financial claim. The court noted that the parties had filed documents setting out the evidence for the resolution of the financial claim, and that there was still an evidentiary premise to permit the assessment of hardship despite the appellant's failure to particularise her financial claim in her Initiating Application. The court also noted that to have permitted the appellant to amend her claim would not have caused the respondent any countervailing prejudice, and that the parties were engaged in allied litigation in respect of their children, the result of which proceedings would inevitably affect the parties’ financial responsibilities.

The court held that the primary judge's decision to refuse leave to appeal was wrong in law, and that the appellant was entitled to leave to appeal. The court held that the primary judge had erred in denying the appellant procedural fairness, and that the decision was manifestly unreasonable. The court held that the parties' submissions and evidence were sufficient to permit the assessment of the financial claim, and that to have permitted the appellant to amend her claim would not have caused the respondent any countervailing prejudice. The court held that the refusal of the appellant’s adjournment and amendment applications was manifestly unreasonable, and that the anterior decision refusing the adjournment vitiates the dismissal order. The court allowed the appeal, set aside the orders made by the primary judge, and remitted the appellant’s application for an extension of time within which to bring an application for financial relief under Pt VIIIAB of the Act for re-hearing by another judge.

The court ordered that leave to appeal was granted, the appeal was allowed, and the orders made by the primary judge were set aside. The court ordered that the appellant’s application for an extension of time within which to bring an application for financial relief under Pt VIIIAB of the Act was remitted for re-hearing by another judge. The court also dismissed the parties' applications for costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth).

Orders

Orders of the court

NAA 252 of 2025

MLC 12933 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS EVELYN

Appellant

AND:

MR KOZEL

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

19 SEPTEMBER 2025

THE COURT ORDERS THAT:

1. Leave to appeal is granted.

2. The appeal is allowed.

3. Orders 1 and 2 made on 16 May 2025 are set aside.

4. Order 1 made on 8 July 2025 is set aside.

5. The appellant’s application under s 44(6) of the Family Law Act 1975 (Cth) (“the Act”) for an extension of time within which to bring an application for financial relief under Pt VIIIAB of the Act is remitted for re-hearing by another judge.

6. The parties’ applications for costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) are 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.

Background

Background to the litigation

The application is remitted for re-hearing by another judge.BACKGROUND The parties were formerly in a de facto relationship. The parties disagreed when precisely in 2017 their relationship broke down, but the dispute over that fact was not relevant before the primary judge because, regardless, the appellant’s application for financial relief against the respondent under Pt VIIIAB of the Act was brought years out of time (at [2]–[3]). The proceedings were commenced in October 2024 and the appellant’s anterior application for the grant of leave to proceed under s 44(6) of the Act was listed for a threshold hearing before the primary judge on 16 May 2025. The appellant was represented but the respondent was not. He opposed the appellant’s application. The appellant relied upon her Initiating Application filed in October 2024, together with the evidence she nominated (at [8]). The hearing proceeded without cross-examination, as the parties were content to rely upon their written and oral submissions. Significantly as it transpired, the appellant’s application for final financial relief was stated as follows in her Initiating Application filed on 15 October 2024:25.That the [appellant] be excused from particularising the final property orders that she seeks pending disclosure being made between the parties. When the appellant’s counsel began her submissions, her Honour interjected to identify the perceived lacuna in her application for an extension of time to bring her financial claim. This exchange occurred with counsel:HER HONOUR: I think the difficulty that your client has and that you will need to address, and I’m not sure your client can overcome, is that she doesn’t have an application before the court in proper form. So, she has filed her initiating application seeking final orders that she be excused from particularising the final property orders that she seeks, pending disclosure, and I don’t think I can be satisfied, applying that test, that she has reasonable prospects, a sufficient likelihood of success in her claim because she doesn’t have a claim. So, I think your client’s application has to fail. I think it needs to be dismissed. And I will need you to address me on that, because if you don’t overcome that part of the test, then my discretion doesn’t arise.[Counsel for the appellant]: I appreciate that, your Honour, and thank you for bringing it to our attention at the outset of the day. The difficulty that my client has about this is, especially given the length of time that has passed, she simply cannot particularise her claim without knowing what assets the [respondent] presently has.HER HONOUR: She has to make a claim, and it can be a claim that is later amended, but at the moment she doesn’t have a claim. She be excused from particularising the final property order she seeks, she doesn’t actually seek property orders. There’s no relief sought under section 90SM, there’s no declaratory relief sought. What claim am I to assess? So, the Full Court in Edmunds said I can look at something that falls short of her claim, but she doesn’t have a claim before the court.…[Counsel for the appellant]: … I can understand the difficulty in assessing, exactly as your Honour said, I can understand the difficulty in assessing my client’s entitlements when she hasn’t particularised the application specifically …(Transcript 16 May 2025, p.9 line 28 to p.10 line 2; p.11 lines 34–37)(Emphasis added)

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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