Swinbank & Stein - [2022] FedCFamC1A 182

Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Swinbank & Stein [2022] FedCFamC1A 182

Appeal from: Swinbank & Stein (No 2) [2022] FedCFamC1F 731

Appeal number: NAA 235 of 2022

File number: CSC 103 of 2021

Judgment of: AUSTIN J

Date of judgment: 10 November 2022

Catchwords: FAMILY LAW – APPEAL – Practice and procedure – Where the appeal was listed to afford the self-represented appellant the opportunity to rectify his incompetent grounds of appeal – Where the appeal, even if successful would be futile as it does not challenge an earlier declaration that the parties were never in a de facto relationship – Where the pleaded grounds are hopelessly inadequate – Where the appellant is granted leave to appeal from the earlier declaration out of time – Where in default of an Amended Notice of Appeal being filed within 14 days the appeal is summarily dismissed – Orders made.

Legislation:
Family Law Act 1975 (Cth) Pt VIIIAB, s 90RD

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32, 46, 69

Cases cited:
Colburn & Cleese [2022] FedCFamC1A 147

Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22

Number of paragraphs: 20

Date of hearing: 10 November 2022

Place: Newcastle (via video link)

The Appellant: Litigant in person

The Respondent: Litigant in person
ORDERS

NAA 235 of 2022
CSC 103 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR SWINBANK

Appellant

AND:
MS STEIN

Respondent

order made by:

AUSTIN J

DATE OF ORDER:

10 November 2022

THE COURT ORDERS THAT:
1.Leave is granted for the appellant to bring an appeal within the next 14 days from the orders made on 14 September 2022 (Suit No. ...), which appeal may be included within any Amended Notice of Appeal filed by the appellant in these proceedings (Suit No. ...) pursuant to Order 2 hereof.
2.The appellant shall file an Amended Notice of Appeal within 14 days hereof, in default of which the appeal 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 Swinbank & Stein has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

On 14 September 2022, following a hearing some three months before, a judge of the Federal Circuit and Family Court of Australia (Division 1) declared, pursuant to s 90RD(1) of the Family Law Act 1975 (Cth) (“the Act”), that no de facto relationship ever existed between the parties.…

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.

Continue reading Swinbank & Stein

Details

AGLC: Swinbank & Stein [2022] FedCFamC1A 182
Case: [2022] FedCFamC1A 182
Decision Date

CaseChat Overview and Summary

The appeal before the Federal Circuit and Family Court of Australia was brought by Swinbank, the appellant, against Stein, the respondent. The appeal sought to challenge the dismissal of Swinbank's claim for property settlement relief, which was predicated upon the assertion that a de facto relationship had existed between the parties. The appeal was brought in the context of an earlier declaration made by the court that no such relationship had ever existed. The appeal was brought from only the second set of orders dismissing Swinbank's substantive application for property settlement relief, but not from the first set of orders declaring that the parties were never in a de facto relationship. The appeal was also hampered by the incompetency of the grounds of appeal.

The central legal issues before the court were whether the appeal could be allowed to proceed and, if so, what orders should be made to ensure the appeal could be heard effectively. The court had to consider whether the appeal from only the second set of orders was futile, given the unchallenged declaration that the parties were never in a de facto relationship, and whether the grounds of appeal were competent. If the appeal was to proceed, the court also had to consider whether the appellant should be granted leave to bring an appeal from the first set of orders out of time, and whether the grounds of appeal from the second set of orders should be amended to be recognisable as competent grounds of appeal.

In resolving these issues, the court held that the appeal, in its current form, was both futile and incompetent. The court held that the appeal from only the second set of orders would be futile because, even if successful, no property settlement relief could be granted in the face of the unchallenged declaration that the parties were never in a de facto relationship. The court also held that the grounds of appeal were hopelessly inadequate and incompetent, and needed to be amended to be recognisable as competent grounds of appeal. The court granted the appellant leave to bring an appeal from the first set of orders out of time and ordered the appellant to amend the grounds of appeal from the second set of orders within 14 days. In the event that the appellant did not file an Amended Notice of Appeal within 14 days, the appeal was to be summarily dismissed.

The final orders made by the court granted the appellant leave to bring an appeal from the first set of orders made on 14 September 2022 out of time and required the appellant to file an Amended Notice of Appeal within 14 days. In default of such an Amended Notice of Appeal being filed within 14 days, the appeal was to be summarily dismissed.

Orders