Lynch & Lynch

[2024] FedCFamC1A 7

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Lynch & Lynch [2024] FedCFamC1A 7

Appeal from:

Lynch & Lynch [2023] FedCFamC1F 801

Appeal number:

NAA 290 of 2023

File number:

SYC 970 of 2019

Judgment of:

MCCLELLAND DCJ, TREE & BAUMANN JJ

Date of judgment:

12 February 2024

Catchwords:

FAMILY LAW – APPEAL – PROPERTY – Where the primary judge dismissed an application pursuant to s 44(3) of the Family Law Act 1975 (Cth) to bring property settlement proceedings out of time – Where appeals from such decisions are prohibited pursuant to s 26(2)(a)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) – Where likewise an appeal from a refusal to adjourn is also prohibited pursuant to s 26(2)(b)(ii) of the FCFCOA Act – Where the appeal is incompetent – Appeal dismissed.

Legislation:

Family Law Act 1975 (Cth) s 44

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 28

Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02

Cases cited:

Beckham & Quarrington (2019) FLC 93-913; [2019] FamCAFC 144

Darley (No 4) [2023] FedCFamC1A 158

Emamy and Marino (1994) FLC 92-487; [1994] FamCA 166

Simonds (Deceased) & Coyle (2019) FLC 93-895; [2019] FamCAFC 47

Number of paragraphs:

10

Date of hearing:

31 January 2024

Place:

Heard in Sydney, delivered in Cairns

The Appellant:

Litigant in person

Counsel for the Respondent:

Dr Barnett SC and Ms Seric

Solicitor for the Respondent:

Enza Ruscica Solicitors

ORDERS

NAA 290 of 2023
SYC 970 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR LYNCH

Appellant

AND:

MS LYNCH

Respondent

ORDER MADE BY:	MCCLELLAND DCJ, TREE & BAUMANN JJ
DATE OF ORDER:	12 FEBRUARY 2024

THE COURT ORDERS THAT:

1.Appeal NAA 290 of 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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lynch & Lynch has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

MCCLELLAND DCJ, TREE & BAUMANN JJ:

1. On 19 September 2023, a judge of the Federal Circuit and Family Court of Australia (Division 1) (“the primary judge”) made orders dismissing an application by Mr Lynch (“the husband”) under s 44(3) of the Family Law Act 1975 (Cth) to bring property settlement proceedings out of time.

2. By Amended Notice of Appeal filed 8 December 2023, the husband seeks leave to appeal, and if successful, to appeal that order. Ms Lynch (“the wife”) opposes such leave being granted and any appeal.

3. Although not raised by the wife, at the commencement of the hearing of the appeal, we directed the parties’ attention to sub ss 26(2)(a)(i) and (ii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”), which read as follows:

   Certain kinds of appeals prohibited

   (2)An appeal must not be brought from a judgment referred to in subsection (1) if the judgment is:

   (a)       a determination of an application:

   (i)for leave or special leave to institute proceedings in the Federal Circuit and Family Court of Australia (Division 1); or

   (ii)for an extension of time within which to institute proceedings in the Federal Circuit and Family Court of Australia (Division 1); or

   …

4. Also relevant are ss 28(1)(b) and 28(3)(e)(i) of the FCFCOA Act which provide:

   Leave to appeal needed for some family law or child support proceedings

   Appeals from judgments of the Federal Circuit and Family Court of Australia (Division 2) or the Magistrates Court of Western Australia

   (1)Leave of the Federal Circuit and Family Court of Australia (Division 1) is required to appeal to the Court from:

   …

   (b)a prescribed judgment of the Federal Circuit and Family Court of Australia (Division 2) or the Magistrates Court of Western Australia; or

   …

   (3)Leave of a Full Court of the Federal Circuit and Family Court of Australia (Division 1) is required to appeal to the Court from:

   (e)       the following judgments:

   (i)a prescribed judgment of the Federal Circuit and Family Court of Australia (Division 1) constituted by a single Judge;

   …

5. The prescription under both of those provisions is made by reg 4.02 of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) (“the Regulations”) which is in the following terms:

   Leave to appeal required for some family law and child support proceedings—prescribed judgments

   (1)For the purposes of paragraphs 28(1)(b) and (3)(e) of the Federal Circuit and Family Court Act, the following judgments are prescribed:

   (a)an interlocutory decree (other than a decree in relation to a child welfare matter);

   (b)an order under section 102PE, 102QF or 102QG of the Family Law Act.

   …

6. Whilst, as the Full Court noted in Darley (No 4) [2023] FedCFamC1A 158 at [16]–[17], there is “some tension” between s 26 of the FCFCOA Act and reg 4.02(1)(b) of the Regulations, that is not a matter which requires consideration here, as on no view is the order under appeal of the kind specified in that regulation.

7. Particularly the matter before the primary judge did not involve an application for relief under any of the sections enumerated in reg 4.02(1)(b) of the Regulations, and the refusal of a grant of leave under s 44(3) is not interlocutory, even though the grant of leave is (Emamy and Marino (1994) FLC 92-487 at 81,075; Simonds (Deceased) & Coyle (2019) FLC 93-895 at [14]; Beckham & Quarrington (2019) FLC 93-913 at [27]). In any event, orthodox principles of construction would see the statute, rather than any regulation made under it, given primacy, although the “tension” between them might also be alleviated by, cognisant of the failure of the regulation to delineate between the judgments prescribed for Division 1 and Division 2, construing the regulation as being principally directed to Division 2.

8. The husband was unable to articulate any argument as to why s 26(2)(a) of the FCFCOA Act did not prohibit his appeal, and we cannot discern any viable argument for ourselves.

9. Further, to the extent that the husband sought to argue that the primary judge erred by failing to adjourn the hearing, such an appeal is also prohibited under s 26(2)(b)(ii) of the FCFCOA Act, and hence again the appeal is incompetent.

10. The appeal must be dismissed, in which event the wife sought no orders as to costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Tree & Baumann.

Associate:

Dated:       12 February 2024