Lunde & Lunde

Case [2025] FedCFamC1A 44

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Lunde & Lunde [2025] FedCFamC1A 44

Appeal from: Lunde and Lunde [2024] FCWAM 240
Appeal number: NAA 29 of 2025
File number: 8845 of 2020
Judgment of: AUSTIN J
Date of judgment: 14 March 2025
Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant’s appeal was deemed abandoned due to his failure to file transcript on time – Where the applicant filed an application seeking reinstatement of the appeal – Where the appeal evinces no obvious merit and to reinstate it would cause prejudice to the wife – Where the applicant did not make a disqualification application to the magistrate and waived his complaint of bias – Where none of the applicant’s complaints about his denial of procedural fairness can be made good – Where complaints of unsatisfactory professional performance by lawyers other than his own is not a competent ground of appeal – Re-instatement application refused – No order as to costs.  
Legislation:

Family Law Act 1975 (Cth) Pts VIII, VIIIA, ss 71A, 79

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.03, 13.22, 13.37

Cases cited:

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

Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2

Duarte & Morse (2024) FLC 94-192

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Enns & Enns [2025] FedCFamC1A 21

Farrington & Belkis [2024] FedCFamC1A 133

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Newett & Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11

SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152; [2006] HCA 63

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs: 44
Date of hearing: On the papers in chambers
Place: Newcastle
The Applicant: Litigant in person
The Respondent: Litigant in person (did not participate)

ORDERS

NAA 29 of 2025
8845 of 2020

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

MR LUNDE

Applicant
AND:

MS LUNDE

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

14 MARCH 2025

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 11 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 Lunde & Lunde has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

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Lunde & Lunde [2025] FedCFamC1A 44
Case
[2025] FedCFamC1A 44
Decision Date

CaseChat Overview and Summary

The application in the appeal was filed by Mr. Lunde against Ms. Lunde, who was the respondent in the underlying original proceedings. The dispute concerned financial relief following the separation of the parties in October 2020. The Federal Circuit and Family Court of Australia Appellate Division was tasked with deciding the appeal, which had been deemed abandoned due to Mr. Lunde's failure to file a transcript on time. The court considered an application by Mr. Lunde to reinstate the appeal, which had been dismissed for want of prosecution.

The primary legal issues the court had to address were whether the appeal should be reinstated, and if so, whether it would cause any prejudice to Ms. Lunde. The court found that the appeal had no obvious merit and that reinstating it would cause prejudice to Ms. Lunde. The court also considered Mr. Lunde's complaints about procedural fairness, bias, and the professional performance of his lawyers. However, it found that he had not made a disqualification application to the magistrate, had waived his complaint of bias, and that none of his complaints about procedural fairness could be remedied. Additionally, complaints about the unsatisfactory performance of lawyers other than his own were deemed not to be a competent ground of appeal.

The court's reasoning led to the conclusion that the appeal should not be reinstated. The application was dismissed, and no order was made as to costs. The court's decision was based on the findings that the appeal lacked merit, would cause prejudice to Ms. Lunde, and that none of Mr. Lunde's complaints about procedural fairness or professional performance were competent grounds for appeal.

Orders

Orders of the court

NAA 29 of 2025

8845 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR LUNDE

Applicant

AND:

MS LUNDE

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

14 MARCH 2025

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 11 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

These reasons explain the dismissal of an application to re-instate an abandoned appeal.BACKGROUND The parties to the underlying original proceedings married in 2016 (at [46]). They separated in October 2020 when the wife vacated the former family home with the children, leaving the husband in exclusive occupation of it (at [59]). The wife immediately commenced proceedings for financial relief in October 2020 (at [3]), which were entertained by the Magistrates Court of Western Australia. The husband failed to participate consistently with the litigation. He ignored many procedural orders (at [5], [9], [15]–[23], [28] and [70]). Some of the documents he did file were deficient (at [11]–[14] and [20]). He did not attend some court events (at [8] and [29]), though he alleges the magistrate was mistaken about his non-appearance at the event on 4 October 2024 (at [24]). The position taken by the husband in the litigation was that, in 2020, the parties struck a “binding contractual agreement” which ousted jurisdiction to entertain the wife’s application for property settlement relief (at [14], [16], [20] and [58]). Despite orders requiring it, the husband never produced the alleged document to either the wife or the Court (at [30]). By October 2024, the magistrate had evidently tired of the father’s non-compliance and ordered that the wife’s application for financial relief be heard on an “undefended basis” in December 2024 (at [24]). On the date fixed for the trial in December 2024, the husband appeared, though without legal representation. The magistrate declined to let him actively participate in the hearing (at [31]). However, the magistrate took into account the documents the husband formerly filed (at [11] and [40]) and a letter he sent to the Court (at [26]), even though such documents were not relied upon by the wife as evidence of any admission against interest made by the husband (at [37]). It was an error of law to consider such extraneous material (Enns & Enns [2025] FedCFamC1A 21 at [18]–[22]), though it was an error from which the husband benefitted and about which the wife does not complain, so it is immaterial to the appeal (Conway v The Queen (2002) 209 CLR 203 at 207, 208, 217, 219, 220, 232 and 244). Some factual assertions made by the husband within those extraneous documents bore upon the magistrate’s deliberations (at [51] and [69]), even though untested by cross-examination. Conversely, the magistrate described the wife as having been cross-examined (at [49]), in which event her evidence was tested to some degree during the hearing. Judgment was reserved and delivered two weeks later. Relevantly, the orders provided for the sale of the jointly owned family home (Order 1), for the wife to conduct the sale as trustee (Orders 1 and 2), and for the husband to maintain the property in good order until he vacated it within two months (Orders 5, 6 and 7). The net sale proceeds were to be divided in shares of 65 per cent to the wife and 35 per cent to the husband (Order 3). Otherwise, the parties retained their chattels, superannuation and debts (Orders 9 and 10) and the husband was ordered to pay the wife’s costs of $5,000 (Order 11).

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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