Fowles & Fowles

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.