Scott - [2023] FedCFamC1A 161

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Scott [2023] FedCFamC1A 161

Appeals from:
Munayallan & Scott (No 5) [2021] FedCFamC1F 284

Scott & Munayallan (No 12) [2023] FedCFamC1F 665

Appeal numbers: NAA 256 of 2023
NAA 258 of 2023

File number: SYC 59 of 2010

Judgment of: AUSTIN J

Date of judgment: 22 September 2023

Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant filed two applications in an appeal – Where the first application seeks review of the appeal registrar’s decision to reject and not file the applicant’s Notice of Appeal – Where the intended appeal would commence new proceedings in contravention of the vexatious litigant injunction previously made against the applicant – Where the second application seeks leave to appeal against orders made in December 2021 – Where the December 2021 orders were amended in February 2023 under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where there is no evidence to explain the applicant’s delay in appealing the orders – Where the material upon which the applicant relies is not sufficient to persuade an exercise of discretion in his favour – Applications dismissed.

Legislation:
Family Law Act 1975 (Cth) Pt VIII and Pt XIB, s 102QE

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, r 10.13 and r 13.38

Cases cited:
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

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

Pencious & Searle (2017) FLC 93–805; [2017] FamCAFC 210

Number of paragraphs: 36

Date of hearing: Determined in chambers on the papers

The Applicant: Litigant in person

ORDERS

NAA 256 of 2023
NAA 258 of 2023
SYC 59 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR SCOTT

Applicant

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

22 SEPTEMBER 2023

THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 14 September 2023 is dismissed.
2.The Application in an Appeal filed on 15 September 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 Scott has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:

These reasons explain the dismissal of two Applications in an Appeal, filed respectively by the applicant on 14 and 15 September 2023.
The…

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.

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Details

AGLC: Scott [2023] FedCFamC1A 161
Case: [2023] FedCFamC1A 161
Decision Date

CaseChat Overview and Summary

The case concerns an application by the respondent, who is the wife, to determine the applicant’s, who is the husband’s, appeal out of time from the primary judge’s orders made in February 2023. The matter was heard in the Family Court of Australia. The dispute between the parties is over the husband’s attempt to appeal the final financial orders made by the primary judge on 11 August 2023, which were intended to facilitate the completion of the liquidation of a corporation formerly controlled by the husband. The wife applied for the husband’s appeal to be dismissed as out of time, arguing that it was filed 14 months after the primary judge’s orders were made and that there was no good reason for the delay.

The legal issues before the court were whether the husband’s application for leave to appeal out of time should be granted and whether the wife’s application to dismiss the appeal should be successful. The court needed to consider whether the delay in filing the appeal was justified and whether there were any exceptional circumstances that warranted an extension of the time limits. The court also had to assess whether the appeal had any reasonable prospects of success and if dismissing the appeal would result in significant injustice.

The court found that the husband's delay in filing the appeal was not justified and that there were no exceptional circumstances to warrant an extension of time. The court noted that the husband had a history of making numerous unsuccessful applications and appeals, which indicated a pattern of vexatious behaviour. The court also found that the appeal did not have any reasonable prospects of success and that dismissing it would not result in significant injustice. Therefore, the court dismissed the husband’s application for leave to appeal out of time and granted the wife’s application to dismiss the appeal. The orders made by the primary judge were upheld, finalising the financial cause between the parties.

In conclusion, the court dismissed the husband’s appeal out of time and upheld the primary judge’s orders. The wife’s application to dismiss the appeal was successful. The court found that the husband’s delay in filing the appeal was unjustified, and there were no exceptional circumstances to warrant an extension of time. The appeal did not have any reasonable prospects of success, and dismissing it would not result in significant injustice. The orders made by the primary judge were final and binding.

Orders

Orders of the court

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Background

Background to the litigation

In each application, the applicant informed the Court he wanted the applications determined in the parties’ absence in accordance with r 13.38 and Pt 5.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). His request is accommodated.Brief background Proceedings between the spouses under the Act were first commenced by the applicant in 2010 but were discontinued for a period after they reconciled. The proceedings were revived by 2014, after the spouses finally separated. They contested both parenting and financial causes. Orders were made to finalise the parenting cause between the spouses in August 2019. The applicant’s appeal from those orders was deemed abandoned and his application to re-instate the appeal was dismissed in December 2019. The applicant’s subsequent applications within original jurisdiction to vary the parenting orders failed and his applications for leave to file appeals out of time from those dismissal orders were dismissed in July 2021. The financial cause between the spouses continued, while parallel proceedings concerning corporations and parcels of real property were conducted between the spouses and multiple other parties in the Supreme Court of NSW. In August 2021, the applicant’s applications for the primary judge’s disqualification and an adjournment of the final hearing were dismissed. The applicant’s appeal from those orders was later dismissed in April 2022. On 21 December 2021, the primary judge made various substantive and procedural orders. Relevantly, they included a vexatious litigant injunction against the applicant (Order 1), interim spousal maintenance orders (Orders 4 and 5), and a costs order (Order 7). The orders were later amended under r 10.13 of the Rules (“the slip rule”), apparently on or about 23 February 2023, some 14 months afterwards. The spouses’ financial cause was finally tried in February 2023. By then, other parties were joined to the cause (including the liquidator of a corporation formerly controlled by the applicant) and part of the proceedings pending before the Supreme Court of NSW had been transferred for determination in conjunction with the matrimonial cause. The primary judge pronounced orders on 11 August 2023 to finalise the financial cause between the spouses. The final orders, in large measure, facilitated the completion of the liquidation of the corporation formerly controlled by the applicant (“[I Pty Ltd]”). In summary, her Honour declared I Pty Ltd to be the beneficial owner of certain property (Order 1), authorised the liquidator to reject proofs of debt received from certain persons and corporations (Order 2), authorised the liquidator to pay certain creditors of I Pty Ltd (Order 4), directed the liquidator to pay any surplus funds to the wife and her lawyers (Orders 6 and 7), fixed the liquidator’s remuneration for past work (Order 3), and enabled the liquidator to approach the court for further orders concerning remuneration (Order 5).

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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Appeals from:		Munayallan & Scott (No 5) [2021] FedCFamC1F 284 Scott & Munayallan (No 12) [2023] FedCFamC1F 665
Appeal numbers:		NAA 256 of 2023 NAA 258 of 2023
File number:	SYC 59 of 2010
Judgment of:	AUSTIN J
Date of judgment:	22 September 2023
Catchwords:	FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant filed two applications in an appeal – Where the first application seeks review of the appeal registrar’s decision to reject and not file the applicant’s Notice of Appeal – Where the intended appeal would commence new proceedings in contravention of the vexatious litigant injunction previously made against the applicant – Where the second application seeks leave to appeal against orders made in December 2021 – Where the December 2021 orders were amended in February 2023 under r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where there is no evidence to explain the applicant’s delay in appealing the orders – Where the material upon which the applicant relies is not sufficient to persuade an exercise of discretion in his favour – Applications dismissed.
Legislation:	Family Law Act 1975 (Cth) Pt VIII and Pt XIB, s 102QE Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, r 10.13 and r 13.38
Cases cited:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Jackamarra v Krakouer and Anor (1998) 195 CLR 516; [1998] HCA 27 Pencious & Searle (2017) FLC 93–805; [2017] FamCAFC 210
Number of paragraphs:	36
Date of hearing:	Determined in chambers on the papers
The Applicant:	Litigant in person

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	22 SEPTEMBER 2023