Fowles & Fowles

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Fowles & Fowles [2023] FedCFamC1A 238

Appeal from: Fowles & Fowles (No 4) [2023] FedCFamC1F 819
Appeal number: NAA 305 of 2023
File number: MLC 8587 of 2015
Judgment of: AUSTIN J
Date of judgment: 20 December 2023
Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant’s appeal was deemed abandoned due to his failure to file a draft appeal index within the time prescribed by r 13.14(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where one hour before the appeal book index was due the applicant lodged for filing an Application in an Appeal seeking an extension of time within which to file it – Where the appeal registrar rejected the Application for filing – Where the Application could not have been served, heard and determined within the time the appeal book index was due and it would have been futile to accept the Application – Where no prejudice could accrue to the respondent by the appeal’s reinstatement after such a short interlude of abandonment – Where the respondent sought security for her costs of the appeal – Security for costs ordered – Application to reinstate appeal granted.
Legislation:

Family Law Act 1975 (Cth) Pt VIII, s 75 and s 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 38

Federal Proceedings (Costs) Act 1981 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.02, 13.10, 13.12, 13.14

Cases cited:

Allan & Ors & Allan & Ors (2014) FLC 93-606; [2014] FamCAFC 162

Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220; [1986] HCA 13

Frazier & Valdez (2016) FLC 93-729; [2016] FamCAFC 163

Gordon v Tolcher (2006) 231 CLR 334; [2006] HCA 62

Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27

Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84
Number of paragraphs: 64
Date of hearing: 20 December 2023
Place: Newcastle (via Microsoft Teams)
Counsel for the Applicant: Mr Wyles KC & Ms Frederico
Solicitor for the Applicant: Barry Nilsson
Counsel for the Respondent: Mr Sheales
Solicitor for the Respondent: Lander & Rogers

ORDERS

NAA 305 of 2023
MLC 8587 of 2015

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

MR FOWLES

Applicant
AND:

MS FOWLES

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

20 DECEMBER 2023

THE COURT ORDERS THAT:

1.The following documents sent to the appeal registrar at 3.31 pm on 1 December 2023 are accepted for filing and are deemed filed on 1 December 2023:

(a)the Amended Notice of Appeal dated 1 December 2023;

(b)the Application in an Appeal dated 1 December 2023; and

(c)the affidavit of William David Stidson, affirmed on 1 December 2023.

2.The appeal is re-instated in the form comprised within the…

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Details
Case
[2023] FedCFamC1A 238
Decision Date

CaseChat Overview and Summary

In the case of Mr Fowles v Ms Fowles, the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction was called upon to decide an application by Mr Fowles to reinstate his appeal against a property settlement order made by the primary judge. The appeal had been deemed abandoned due to Mr Fowles' failure to file a draft appeal index within the time prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). One hour before the deadline, Mr Fowles had lodged an Application in an Appeal seeking an extension of time to file the draft appeal index, but this was rejected by the appeal registrar. The court was required to determine whether the appeal could be reinstated, whether Mr Fowles' application for an extension of time could be accepted, and whether security should be ordered for the respondent's costs of the appeal.

The court held that the appeal could be reinstated as it would be futile to maintain the abandonment and no prejudice would accrue to the respondent by the short interlude of abandonment. The court noted that the Application in an Appeal could not have been served, heard, and determined within the time the appeal book index was due, rendering it futile to accept the application. The court also granted the respondent's request for security for her costs of the appeal, ordering Mr Fowles to pay $100,000 to the respondent's solicitors in trust by 4.30 pm on Thursday 1 February 2024, in default of which the appeal would be dismissed.

The court's orders included accepting the Amended Notice of Appeal, the Application in an Appeal, and the supporting affidavit for filing, reinstating the appeal, extending the time for filing the draft appeal book index to 4.30 pm on Wednesday 31 January 2024, and granting the respondent leave to file and serve a Notice of Cross Appeal by 4.30 pm on Friday 19 January 2024. Additionally, the court stayed certain orders made by the primary judge pending determination of the appeal and dismissed the respondent's outstanding costs application.

Orders

Orders of the court

NAA 305 of 2023

MLC 8587 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR FOWLES

Applicant

AND:

MS FOWLES

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

20 DECEMBER 2023

THE COURT ORDERS THAT:

1. The following documents sent to the appeal registrar at 3.31 pm on 1 December 2023 are accepted for filing and are deemed filed on 1 December 2023:

(a) the Amended Notice of Appeal dated 1 December 2023;

(b) the Application in an Appeal dated 1 December 2023; and

(c) the affidavit of William David Stidson, affirmed on 1 December 2023.

2. The appeal is re-instated in the form comprised within the Amended Notice of Appeal deemed filed on 1 December 2023.

3. The time for the appellant to file the draft appeal book index is extended to 4.30 pm on Wednesday 31 January 2024.

4. The appellant shall pay the sum of $100,000 to the respondent’s solicitors in trust by way of security for the respondent’s costs of and incidental to the appeal by 4.30 pm on Thursday 1 February 2024, in default of which the appeal stands dismissed.

5. Leave is granted to the respondent to file and serve a Notice of Cross Appeal by 4.30 pm on Friday 19 January 2024.

6. Orders 1(b), 3 and 13 made by the primary judge on 6 October 2023 are stayed, pending determination of the appeal.

7. Otherwise, save as to the respondent’s outstanding costs application:

(a) the Application in an Appeal deemed filed on 1 December 2023 is dismissed;

(b) the Application in an Appeal filed on 5 December 2023 is dismissed; and

(c) the Response to an Application in an Appeal filed on 14 December 2023 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

The review application is opposed but, in the alternative, the respondent seeks additional relief.BACKGROUND On 6 October 2023, a judge of the Federal Circuit and Family Court of Australia (Division 1) made orders to determine a financial cause contested between the parties under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”). The cause was a drawn-out affair. The proceedings were commenced in 2015. The trial started in March 2018, but occupied 43 days spread over more than three years and did not end until September 2021. Written submissions (excluding those relating to costs) were not complete until September 2022. Judgment was reserved for more than a year before it was delivered in October 2023. The primary judge found, allowing for the applicant’s non-disclosure, the parties’ identifiable assets and superannuation had a combined net value of just under $7 million (at [388]–[390]). Her Honour found the parties’ contribution-based entitlements to be equal (at [418]), but that an adjustment of 10 per cent in the respondent’s favour was warranted by reasons of the factors prescribed by s 75(2) of the Act (at [463]). The overall result was the respondent’s entitlement to 60 per cent and the applicant 40 per cent of the identifiable assets and superannuation. In addition, the primary judge determined to dismiss the applicant’s application to discharge former spousal maintenance orders and relieve him from the liability of arrears (at [468]–[479]), but his Honour did dismiss the respondent’s application for lump sum spousal maintenance (at [480]–[483]). The parties’ applications in respect of child support were dismissed (at [484]). The applicant filed his appeal from the property settlement orders within time on 3 November 2023. By operation of the Rules, the applicant had until 4.30 pm on Friday 1 December 2023 to file his draft appeal index. At 3.31 pm on that day, the applicant sent an email to the appeal registrar requesting that these documents be filed: an Amended Notice of Appeal; an Application in an Appeal; and an affidavit sworn by the applicant’s solicitor in support of the interlocutory application. The Amended Notice of Appeal should have been accepted and filed. The applicant had an unqualified right to file it before the appeal was deemed abandoned. However, at 4.42 pm, the appeal registrar responded by email informing the applicant that the Application in an Appeal and the supporting affidavit were not accepted for filing. The applicant remonstrated with the decision in another email at 4.59 pm but, by another reply sent at 5.51 pm, the appeal registrar explained the rejection of the application and supporting affidavit for these reasons:The documents submitted for filing by email…at 3:32 pm were rejected for filing.There was no reasonable prospect of an extension of time being granted before the expiry of the time defined in the Rules for filing the draft index to the appeal book. The Application in an Appeal which the applicant sought to file sought several different forms of relief but, principally, an extension of time until 31 January 2024 within which to file the appeal book index.

Evidence

Evidence Before The Court

On 14 December 2023, the respondent filed a Response to an Application in an Appeal, by which she opposed the re-instatement of the appeal, but in the alternative, security for her costs of the appeal and an extension of time within which she may file a cross appeal or Notice of Contention.THE APPLICATION AND EVIDENCE By his application, the applicant seeks this relief (in summary):(a)an urgent hearing of the application (Order 1);(b)acceptance of the Amended Notice of Appeal, the Application in an Appeal, and the supporting affidavit sent to the appeal registrar at 3.31 pm on 1 December 2023 for filing (part of Order 2);(c)the contemporaneous hearing of the Application in an Appeal sent to the appeal registrar on 1 December 2023 with this application (part of Order 2);(d)declaration that the applicant in fact complied with r 13.14(2) of the Rules (Order 3);(e)declaration that the appeal registrar erred at law by rejecting the documents for filing on 1 December 2023 (Order 4);(f)an extension of time until 31 January 2024 within which to file the appeal book index (Order 5);(g)re-instatement of the appeal (Order 6);(h)costs certificates for the parties (Order 7); and(i)such further order as the Court sees fit (Order 8). The applicant’s solicitor’s affidavit, filed on 5 December 2023, was read in support of the application. The applicant also relied upon written submissions filed on 14 December 2023, which were supplemented orally.Proposed Order 1 The applicant’s request for the application to be heard urgently was effectively granted. It was listed for hearing promptly.Proposed Order 2 The documents sent to the appeal registrar for filing before 4.30 pm on 1 December 2023 should have been, and will now be, accepted for filing. The applicant had the right to file the Amended Notice of Appeal (r 13.10(1)). The applicant also had the right to file the Application in an Appeal prior to the appeal being deemed abandoned. However, the applicant is mistaken to assume that the acceptance and filing of that Application, wherein he sought relief by an extension of time within which to file the draft appeal book index, would have then or would now suspend the progression of the time period within which the draft appeal book index had to be filed until the application for the extension of time was heard and determined. It was the applicant’s problem that he left the Court with insufficient time within which to list, hear and determine his application for an extension of time before the appeal was deemed abandoned. The appeal was deemed abandoned by operation of r 13.14(2)(a)(i) of the Rules at 4.30 pm on 1 December 2023. The discretionary power to extend the time within which the applicant had to file the draft appeal book index (r 13.14(2)(b)) could arguably not have been exercised after 4.30 pm on 1 December 2023 because, by then, the appeal was deemed abandoned and appellate jurisdiction was exhausted. The applicant contended jurisdiction still existed to extend the time nunc pro tunc after the event (Gordon v Tolcher (2006) 231 CLR 334), but the point need not be resolved because the deemed abandonment of the appeal will be overcome by the grant of the application to re-instate it (canvassed in respect of proposed Order 6 below).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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