Stubbs & Stubbs - [2025] FedCFamC1A 55

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Stubbs & Stubbs [2025] FedCFamC1A 55

Appeal from: Stubbs & Stubbs [2025] FedCFamC1F 98

Appeal number: NAA 133 of 2025

File number: MLC 7164 of 2023

Judgment of: AUSTIN J

Date of judgment: 28 March 2025

Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the decision of the appeal registrar to reject his Notice of Appeal for filing – Where the applicant incorrectly claimed an exemption from payment of the filing fee for his Notice of Appeal – Where the time for filing an appeal then expired – Where the applicant was advised he could file an Application in an Appeal seeking an extension of time to appeal – Where the applicant instead sought judicial review – Where the Notice of Appeal was correctly rejected – Application dismissed.

Legislation: Federal Circuit and Family Court of Australia Rules 2021 (Cth) Pt 5.3, rr 2.23, 13.03, 13.38

Number of paragraphs: 9

Date of last submission/s: 28 March 2025

Date of hearing: On the papers in chambers

Place: Newcastle

Counsel for the Applicant: Litigant in person

Counsel for the Respondent: Litigant in person

The Independent Children's Lawyer: Did not participate
ORDERS

NAA 133 of 2025
MLC 7164 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR STUBBS

Applicant

AND:
MS STUBBS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

28 MARCH 2025

THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 28 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 Stubbs & Stubbs has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:

On 25 February 2025, a judge of the Federal Circuit and Family Court of Australia (Division 1) dismissed an Application for Contempt, brought by the applicant against the respondent in November 2024.
The time for filing any appeal from that judgment expired at 4.30 pm on 25 March 2025 (r 13.03 and r 2.23(4) of the Federal Circuit and Family Court of Australia Rules 2021 (Cth) (“the Rules”)). At 4.15 pm that day the applicant electronically filed a Notice of Appeal, which was accepted via the Court portal because the applicant claimed an exemption from payment of the filing fee on account of him representing that he was the recipient of a grant of legal aid.
The applicant’s representation was untrue. He was…

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: Stubbs & Stubbs [2025] FedCFamC1A 55
Case: [2025] FedCFamC1A 55
Decision Date: 28 March 2025

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was presented with an application by Mr Stubbs seeking a review of a decision by the appeal registrar to reject his Notice of Appeal for filing. The appeal in question was in relation to a family law matter, with Ms Stubbs as the respondent and the Independent Children’s Lawyer also involved. Mr Stubbs had originally incorrectly claimed an exemption from the payment of the filing fee for his Notice of Appeal, and upon discovering this error, he was informed that he could file an Application in an Appeal seeking an extension of time to appeal. Instead, Mr Stubbs opted to seek judicial review of the registrar's decision.

The primary legal issue before the court was whether Mr Stubbs’s Application in an Appeal, which sought a review of the registrar's decision, was the correct procedural avenue to challenge the rejection of his Notice of Appeal. The court needed to determine whether the appeal registrar's decision to reject the Notice of Appeal was correct and if Mr Stubbs’s recourse was appropriately sought through judicial review or by filing a proper Application in an Appeal.

In its decision, the court found that the appeal registrar had correctly rejected Mr Stubbs’s Notice of Appeal due to the incorrect claim of an exemption from the payment of the filing fee. The court reasoned that the proper procedure for Mr Stubbs to challenge the rejection of his Notice of Appeal was to file an Application in an Appeal seeking an extension of time, rather than seeking judicial review. As Mr Stubbs had not followed the correct procedural steps, the court dismissed his Application in an Appeal.

The court concluded that the appeal registrar's decision to reject the Notice of Appeal was appropriate and that Mr Stubbs's attempt to seek judicial review was misconceived. Consequently, the court dismissed the Application in an Appeal, and no further appeal could be taken in the matter without the necessary filing fee being paid and proper procedural steps being followed.

Orders

Orders of the court

NAA 133 of 2025

MLC 7164 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR STUBBS

Applicant

AND:

MS STUBBS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

28 MARCH 2025

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 28 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

Full text does not contain this section.

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 133 of 2025 MLC 7164 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR STUBBS Applicant
AND:	MS STUBBS Respondent
INDEPENDENT CHILDREN'S LAWYER

Appeal from:	Stubbs & Stubbs [2025] FedCFamC1F 98
Appeal number:	NAA 133 of 2025
File number:	MLC 7164 of 2023
Judgment of:	AUSTIN J
Date of judgment:	28 March 2025
Catchwords:	FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the decision of the appeal registrar to reject his Notice of Appeal for filing – Where the applicant incorrectly claimed an exemption from payment of the filing fee for his Notice of Appeal – Where the time for filing an appeal then expired – Where the applicant was advised he could file an Application in an Appeal seeking an extension of time to appeal – Where the applicant instead sought judicial review – Where the Notice of Appeal was correctly rejected – Application dismissed.
Legislation:	Federal Circuit and Family Court of Australia Rules 2021 (Cth) Pt 5.3, rr 2.23, 13.03, 13.38
Number of paragraphs:	9
Date of last submission/s:	28 March 2025
Date of hearing:	On the papers in chambers
Place:	Newcastle
Counsel for the Applicant:	Litigant in person
Counsel for the Respondent:	Litigant in person
The Independent Children's Lawyer:	Did not participate

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	28 MARCH 2025