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:

1. 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.

2. 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.

3. The applicant’s representation was untrue. He was the recipient of a grant of legal aid from the State legal aid agency in the original proceedings (MLC 7164/2024), which grant was approved on 16 January 2025, but he has no current grant of legal aid in respect of the intended appellate proceedings (NAA 133/2025).

4. The next day (26 March 2025), the National Appeal Registrar sent an email to the applicant explaining why the Notice of Appeal was rejected and what he could do next. In part, the email said this:

   …

   The Court has received the documents referenced above, that you filed through the Commonwealth Courts Portal.

   Your documents have not been accepted for filing and have been removed from the Court file (pursuant to Rule 2.24 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021) by the National Appeal Registrar [name]. The file NAA 133/2025 is now finalised.

   The reason for this is:

   •Your application for an exemption from fees has been rejected. The grant of Legal Aid you annex is dated 16 January 2025 and can only relate to the first instance proceedings. You must be in receipt of legal aid for your appeal proceedings to qualify.

   You need to do the following:

   •The time within which you could appeal as of right elapsed at 4.30pm on Wednesday 25 March 2025. Accordingly, pursuant to r 13.03 of the Rules you are now out of time to appeal.

   •In the event you wish to pursue an appeal from the orders of 25 February 2025 you must commence a new appeal proceeding by filing an Application in an Appeal Seeking an Extension of Time to appeal, along with an Affidavit in support annexing your proposed Notice of Appeal…

   (Emphasis in original)

5. The applicant elected not to follow the Appeal Registrar’s advice. He did not file an Application in an Appeal seeking leave to bring his appeal out of time. Instead, he filed an Application in an Appeal on 28 March 2025 seeking judicial review of the Appeal Registrar’s decision on 26 March 2025 to reject the Notice of Appeal and remove it from the Court portal.

6. In support of the review application, the applicant relies upon his affidavit filed on 28 March 2025.

7. The applicant requested that his review application be determined in the absence of the parties in accordance with r 13.38 and Pt 5.3 of the Rules, which request is granted.

8. The Notice of Appeal filed at 4.15 pm on 25 March 2025 is rejected. It was filed without the requisite fee being paid. The exemption from the obligation to pay the filing fee, which the applicant claimed, was untrue.

9. It is the applicant’s choice whether he now applies for leave to bring an appeal out of time in the manner the Appeal Registrar advised was possible.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       28 March 2025