Spence & Spence
[2022] FedCFamC1A 127
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Spence & Spence [2022] FedCFamC1A 127
Appeal from: Spence & Spence [2022] FedCFamC2F 802 Appeal number(s): NAA 165 of 2022 File number(s): MLC 10503 of 2021 Judgment of: AUSTIN J Date of judgment: 16 August 2022 Catchwords: FAMILY LAW – APPEAL – Practice and procedure – Review of decision – Where the applicant seeks review of decisions by the appeal registrar to refuse to accept her Notice of Appeal and Application in an Appeal for filing – Where the proposed appeal is futile – Where the proposed grounds of appeal evince no appealable error – Where there is no point served by the acceptance of the Application in an Appeal for filing as there is no competent appeal – Application dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) Pt VI, ss 55, 60 Cases cited: CDJ v VAJ (1998) 197 CLR 182; [1998] HCA 67
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Number of paragraphs: 17 Date of hearing: 16 August 2022 Place: Newcastle (via video link) The Applicant: Self-represented Litigant Counsel for the Respondent: Mr Indovino Solicitor for the Respondent: Nevett Wilkinson Frawley ORDERS
NAA 165 of 2022
MLC 10503 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SPENCE
Applicant
AND: MR SPENCE
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
16 AUGUST 2022
THE COURT ORDERS THAT:
1.The Amended Application in an Appeal filed on 10 August 2022 is dismissed.
2.The respondent’s application for costs 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 Spence & Spence has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
On 21 June 2022, a judge of the Federal Circuit and Family Court of Australia (Division 2) made orders in these terms:
1.Upon the application of [the husband] for a divorce order in relation to the marriage between [the husband] and [the wife] which was solemnised on the 10th day of October 2015, THE COURT FINDS THAT:
(a) the marriage is proved;
(b)the Husband was at all material times an Australian citizen and domiciled in Australia; and
(c)the ground for the Application for Divorce order, namely that the marriage has broken down irretrievably is proved.
2.A divorce order be made, such divorce to take effect and thereby terminate the marriage on the 23 July 2022.
3. The Wife’s response to Divorce filed on 17 October 2021 be dismissed
THE COURT DECLARES THAT:
4.There are no children of the marriage to whom section 55A(3) of the Family Law Act 1975 (Cth) applies.
The wife wants to appeal from the judgment, but there are insuperable obstacles in her path.
The wife prepared an undated Notice of Appeal, which she unsuccessfully tried to file on 18 July 2022. In an email sent on 19 July 2022 (at 9.37 am), the appeal registrar advised her that the Notice of Appeal was rejected for these reasons:
(a)neither the filing fee was paid nor was any exemption form provided;
(b)the appealed orders were not annexed to the Notice of Appeal;
(c)the Notice of Appeal purports to appeal from various paragraphs of the reasons for judgment; not from any of the four orders which embody the Court’s judgment; and
(d)the “Grounds of appeal” annexed to the Notice of Appeal comprise a lengthy narrative which does not discretely identify any alleged appealable errors and, additionally, refers to evidence which was not apparently adduced before the primary judge.
The wife was reminded that, should she wish to revise and file the intended appeal, she would have to do so before the time for filing expired at 4.30 pm that same day, when the limitation period for the appeal expired. The appeal registrar also reminded the wife that the divorce order would take effect and dissolve the marriage, so haste was important.
Two days later, on 21 July 2022, by which time the limitation period for any appeal had expired, the wife emailed the appeal registrar seeking to file an “attached affidavit and application in a proceeding”.
The attached Application in an Appeal, which was annexed to the wife’s affidavit, sought these orders:
1.I’m seeking to extend the due date of the file of Notice of Appeal. The reason is that I have filed the Notice of appeal However, the court requests additional information and therefore I would like to request extend time. Please find the court email included in the application.
2.I would like to adduce further evidence. I submitted the credit card statement to the court to substantiate my husband has been receiving monthly credit card statements in the post. I also would like to submit our joint account statement details. My husband and I have been depositing and withdrawing money from our joint account.
(As per the original)
Also attached to the wife’s affidavit were the same undated Notice of Appeal, some revised grounds of appeal (which expanded her narrative from four to five pages), the preceding email correspondence with the appeal registrar, and some documents which purport to be copies of bank statement excerpts.
The appeal registrar replied to the wife by email on 22 July 2022, confirming the attached documents were not accepted for filing because:
(a)her affidavit contained no evidence at all about why the proposed appeal was being brought late;
(b)the proposed appeal was pleaded in much the same terms as that which had already been rejected; and
(c)there was no basis upon which further evidence could be received until after it had been first been determined whether she could bring the proposed appeal out of time.
On 1 August 2022, the wife filed an Application in an Appeal seeking the review of the appeal registrar’s decisions on 19 July 2022 (to reject the wife’s Notice of Appeal) and 22 July 2022 (to reject the wife’s affidavit and annexed Application in an Appeal). The wife filed an affidavit on 4 August 2022 in support of her review application. An Amended Application in an Appeal was then filed on 10 August 2022.
The review of the appeal registrar’s decisions proceeds by hearing de novo.
The divorce order has already taken effect as an order in rem by the combined operation of ss 55 and 60 of the Family Law Act 1975 (Cth), so the proposed appeal is futile, meaning the wife’s documents should not be accepted for filing. Nonetheless, as the wife is self-represented, it is worthwhile explaining why her proposed appeal was misconceived in any event.
As drafted, the proposed grounds of appeal evince no appealable error at all. The wife professes her continuing love for the husband, with which sentiment one can readily empathise, but her only apparent grievance with the judgment is that the parties were still using a joint bank account and a joint credit card after the date upon which the husband contended the parties had finally separated. Even so, such continuing financial connections could neither preclude, nor render false, the finding made by the primary judge about the passage of the requisite period of separation and the irretrievable breakdown of the marriage under Pt VI of the Act. Such financial connections between the parties has since ceased anyway, as the wife admits.
If the Notice of Appeal had been accepted and filed within time, its summary dismissal would have inevitably followed for lack of any reasonable prospect of success. Similarly, there is no point served by the acceptance of the Application in an Appeal for filing because the proposed appeal, if brought out of time, is bound to fail in the form it is pleaded.
The wife’s affidavit filed on 4 August 2022 seeks to explain her relatively slight delay in filing the Notice of Appeal by reference to the email correspondence in which she engaged with the appeal registrar, which goes some way to satisfy the principles applied to late-filed appeals (Gallo v Dawson (1990) 93 ALR 479), but that is not enough. The wife is unable to overcome the impediment of the incompetence of the proposed appeal.
The attendant application to adduce further evidence is also misconceived because there is not, and will not be, any competent appeal within which to receive such further evidence, even if the wife could otherwise satisfy the recognised criteria for its acceptance in the proposed substantive appeal (CDJ v VAJ (1998) 197 CLR 182).
The review application must fail.
In that event, the husband sought an order that the wife pay his legal costs of the review hearing in the sum of $20,038.42. The review application was indeed wholly unsuccessful, but the wife has only modest financial circumstances. She is employed and has an encumbered home. The husband’s written submissions in opposition to the review application comprise only five paragraphs. The costs application was opportunistic and unrealistic in equal measure. It is refused.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 16 August 2022
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