Jakobsson & Jakobsson - [2025] FedCFamC1A 47

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Jakobsson & Jakobsson [2025] FedCFamC1A 47

Appeal from: Jakobsson & Jakobsson (No 2) [2024] FedCFamC2F 1873

Appeal number: NAA 45 of 2025

File number: DNC 200 of 2023

Judgment of: AUSTIN J

Date of judgment: 17 March 2025

Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the appeal registrar’s decision to reject his Application in an Appeal seeking leave to file an appeal out of time – Where the primary judge made a superannuation splitting order without the superannuation trustee first having had procedural fairness in respect of it – Orders of the appeal registrar set aside – Where the time for the applicant to appeal from the orders is extended by one day – No order as to costs.

Legislation:
Family Law Act 1975 (Cth) Pt VIII, ss 90XS, 90XZD

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.12

Cases cited:
Naisby & Naisby (2021) FLC 94-025; [2021] FamCAFC 92

Whitmore & Whitmore [2022] FedCFamC1A 75

Number of paragraphs: 24

Date of hearing: 17 March 2025

Place: Newcastle (via Microsoft Teams)

Solicitor Advocate for the Applicant: Dr Owoeye

Solicitor for the Applicant: Layebs Law

Solicitor Advocate for the Respondent: Dr Kelly

Solicitor for the Respondent: Kelly & Partners Lawyers
ORDERS

NAA 45 of 2025
DNC 200 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR JAKOBSSON

Applicant

AND:
MS JAKOBSSON

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

17 MARCH 2025

THE COURT ORDERS THAT:
1.The orders made by the appeal registrar on 4 March 2025 (as amended on 6 March 2025) are set aside.
2.The time for the applicant to appeal from orders made on 24 December 2024 by the Federal Circuit and Family Court of Australia (Division 2) is extended to 12.00 noon AEDT on Tuesday 18 March 2025.
3.Otherwise:
(a)the Application in an Appeal filed on 6 March 2025 is dismissed; and
(b)the Response to an Application in an Appeal filed on 14 March 2025 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 Jakobsson & Jakobsson has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

The time for the applicant to appeal from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 24 December 2025 is extended for the following…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jakobsson & Jakobsson

Details

AGLC: Jakobsson & Jakobsson [2025] FedCFamC1A 47
Case: [2025] FedCFamC1A 47
Decision Date: 17 March 2025

CaseChat Overview and Summary

In the case of Jakobsson & Jakobsson, the applicant, Mr Jakobsson, sought to appeal against property settlement orders made by the Federal Circuit and Family Court of Australia (Division 2) on 24 December 2024. The time for filing an appeal from these orders expired on 21 January 2025, but Mr Jakobsson did not file an appeal within the statutory period. Instead, he applied for an extension of time to file an appeal, which was subsequently dismissed by the appeal registrar. Dissatisfied with this decision, Mr Jakobsson applied to review the appeal registrar's decision. The respondent, Ms Jakobsson, opposed the review application.

The court was required to determine whether Mr Jakobsson had demonstrated a substantial issue to be raised in the appeal, as required by established legal principles. The court also had to consider whether there were any exceptional circumstances justifying an extension of time to appeal. Furthermore, the court needed to assess the impact of the superannuation splitting order on the superannuation trustee, who had not been afforded procedural fairness before the order was made.

The court found that Mr Jakobsson had not demonstrated a substantial issue to be raised in the appeal, as required by the legal principles. The court noted that the primary judge had made a superannuation splitting order without providing the superannuation trustee with procedural fairness. However, the court determined that this issue did not warrant an extension of time to appeal. The court also found that Mr Jakobsson's delay in filing the appeal and his lack of a compelling reason for the delay weighed against granting an extension of time. Ultimately, the court set aside the appeal registrar's orders, extended the time for Mr Jakobsson to appeal by one day, and dismissed his application to review the appeal registrar's decision. There was no order as to costs.

The court ordered that the orders made by the appeal registrar on 4 March 2025 were set aside. The time for Mr Jakobsson to appeal from the orders made on 24 December 2024 was extended to 12.00 noon AEDT on Tuesday 18 March 2025. The application in an appeal filed on 6 March 2025 was dismissed, as was the response to an application in an appeal filed on 14 March 2025.

Orders

Orders of the court

NAA 45 of 2025

DNC 200 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR JAKOBSSON

Applicant

AND:

MS JAKOBSSON

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

17 MARCH 2025

THE COURT ORDERS THAT:

1. The orders made by the appeal registrar on 4 March 2025 (as amended on 6 March 2025) are set aside.

2. The time for the applicant to appeal from orders made on 24 December 2024 by the Federal Circuit and Family Court of Australia (Division 2) is extended to 12.00 noon AEDT on Tuesday 18 March 2025.

3. Otherwise:

(a) the Application in an Appeal filed on 6 March 2025 is dismissed; and

(b) the Response to an Application in an Appeal filed on 14 March 2025 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 time for the applicant to appeal from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 24 December 2025 is extended for the following reasons.Background On 24 December 2024, property settlement orders were made between spouses to finalise a financial cause under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”). The time within which to file an appeal from that judgment expired on 21 January 2025. No appeal was filed. Several weeks later, on 7 February 2025, the husband filed an Application in an Appeal seeking an extension of time within which to file an appeal. The application was resisted by the wife. The disputed application was heard on 3 March 2025 and dismissed by the appeal registrar on 4 March 2025. On 5 March 2025, the husband filed an Application in an Appeal to review the appeal registrar’s decision. He sought the discharge of the appeal registrar’s orders, the grant of an extension of time within which to bring his appeal, and an order staying the appealed orders until the disposition of the appeal. The review application was listed for hearing on 17 March 2025, at which time the husband relied upon:(a)his two affidavits filed on 7 and 12 February 2025 in support of the extension application, to the latter of which his corrected Notice of Appeal was annexed;(b)his three sets of written submissions filed on 24, 26 and 28 February 2025; and(c)his affidavit filed on 5 March 2025 in support of the review application. The wife opposed the review application. She relied upon:(a)her affidavit filed on 18 February 2025 in rebuttal of the extension application;(b)her affidavit filed on 14 March 2025 in rebuttal of the review application; and(c)her two sets of written submissions filed on 25 February 2025 and 14 March 2025.Legal principles This review hearing is an original hearing of the husband’s application for an extension of time within which to appeal from the orders made on 24 December 2024. The legal principles which govern the disposition of applications for leave to appeal out of time were expressed as follows in Whitmore & Whitmore [2022] FedCFamC1A 75:17.Countless decisions have addressed the principles which apply to the determination of applications to extend time to appeal. Inevitably, they all lead back to principles enunciated by the High Court of Australia in Gallo v Dawson (1990) 93 ALR 479 and Jackamarra v Krakouer (1998) 195 CLR 516.18.Essentially, the applicant seeking the extension of time must demonstrate that there is a substantial issue to be raised in the appeal, for otherwise it is pointless granting the extension of time to bring it. That issue is always central to the inquiry, though other considerations then influence the exercise of discretion. Such other considerations are unconfined but include the extent of the delay, the cogency of the reasons offered by the applicant for the delay, whether hardship or prejudice would accrue to the respondent if an extension of time were granted, and the public policy of ensuring that finalised litigation is not unnecessarily re-opened.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 45 of 2025 DNC 200 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR JAKOBSSON Applicant
AND:	MS JAKOBSSON Respondent

Appeal from:	Jakobsson & Jakobsson (No 2) [2024] FedCFamC2F 1873
Appeal number:	NAA 45 of 2025
File number:	DNC 200 of 2023
Judgment of:	AUSTIN J
Date of judgment:	17 March 2025
Catchwords:	FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the appeal registrar’s decision to reject his Application in an Appeal seeking leave to file an appeal out of time – Where the primary judge made a superannuation splitting order without the superannuation trustee first having had procedural fairness in respect of it – Orders of the appeal registrar set aside – Where the time for the applicant to appeal from the orders is extended by one day – No order as to costs.
Legislation:	Family Law Act 1975 (Cth) Pt VIII, ss 90XS, 90XZD Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.12
Cases cited:	Naisby & Naisby (2021) FLC 94-025; [2021] FamCAFC 92 Whitmore & Whitmore [2022] FedCFamC1A 75
Number of paragraphs:	24
Date of hearing:	17 March 2025
Place:	Newcastle (via Microsoft Teams)
Solicitor Advocate for the Applicant:	Dr Owoeye
Solicitor for the Applicant:	Layebs Law
Solicitor Advocate for the Respondent:	Dr Kelly
Solicitor for the Respondent:	Kelly & Partners Lawyers

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	17 MARCH 2025