Swinbank & Stein (No 2) - [2022] FedCFamC1A 198

Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Swinbank & Stein (No 2) [2022] FedCFamC1A 198

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

Appeal number(s): NAA 235 of 2022

File number(s): CSC 103 of 2021

Judgment of: AUSTIN J

Date of judgment: 29 November 2022

Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Extension of time to file Amended Notice of Appeal – Where orders were made granting the applicant leave to file an Amended Notice of Appeal, in default of which the appeal would be summarily dismissed – Where the applicant did not comply – Where the relief sought by the applicant cannot be granted as the appeal was automatically dismissed upon his failure to file an Amended Notice of Appeal – Where the application favourably interpreted is an application to re-instate the appeal – Where the original Notice of Appeal was incompetent and had no reasonable prospects of success – Where no draft Amended Notice of Appeal has been prepared – Application dismissed.

Legislation:
Family Law Act 1975 (Cth) Pt VIIAB

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, rr 13.38, 13.44

Cases cited:
Bemert & Swallow (2010) FLC 93-441; [2010] FamCAFC 100

Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220; [1986] HCA 13

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

Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681; [1986] HCA 84

Nanschild v Pratt [2011] NSWCA 85

Swinbank & Stein [2022] FedCFamC1A 182

Number of paragraphs: 14

Date of hearing: Determined on the papers

Place: Newcastle

Solicitor for the Applicant: MK Family Law

The Respondent: Self-represented litigant
ORDERS

NAA 235 of 2022
CSC 103 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR SWINBANK

Applicant

AND:
MS STEIN

Respondent

order made by:

AUSTIN J

DATE OF ORDER:

29 november 2022

THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 24 November 2022 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 (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:

On 24 October 2022, the applicant filed a Notice of Appeal from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1).
The appeal was incompetent for reasons promptly explained to the applicant (Swinbank…

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 (No 2)

Details

AGLC: Swinbank & Stein (No 2) [2022] FedCFamC1A 198
Case: [2022] FedCFamC1A 198
Decision Date

CaseChat Overview and Summary

In Swinbank & Stein (No 2), the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction was asked to consider an application for an extension of time to file an Amended Notice of Appeal. The appellant, Mr Swinbank, had previously filed an appeal which was found to be incompetent. On 10 November 2022, the Court granted leave for Mr Swinbank to file an Amended Notice of Appeal within 14 days, failing which the appeal would be dismissed. Mr Swinbank failed to file the Amended Notice of Appeal by 24 November 2022, resulting in the automatic dismissal of the appeal. On the same day, Mr Swinbank filed an Application in an Appeal seeking an extension of time to file his Amended Notice of Appeal.

The primary legal issue before the Court was whether the application for an extension of time to file an Amended Notice of Appeal could be granted. The Court had to consider the circumstances that led to Mr Swinbank's failure to file the Amended Notice of Appeal within the time allowed and determine whether re-instatement of the appeal would be appropriate. The Court also had to consider whether the appeal, if re-instated, would have reasonable prospects of success.

The Court found that the application for an extension of time to file an Amended Notice of Appeal could not be granted because the appeal had already been automatically dismissed. The Court acknowledged that the circumstances leading to Mr Swinbank's failure to file the Amended Notice of Appeal were understandable, but they did not justify granting the application for an extension of time. The Court also found that the discretion to re-instate an appeal is broad, but it is generally acknowledged there is no point served by re-instating an appeal devoid of apparent merit. In this case, the original Notice of Appeal was summarily dismissed because it was incompetent and had no reasonable prospect of success in its original form. Moreover, no draft Amended Notice of Appeal had been prepared, and no explanation had been advanced as to the manner in which the appeal might be amended to overcome the deficiencies identified on 10 November 2022.

The Court dismissed the Application in an Appeal both in the form it was made and in the form it had been favourably interpreted. The Court found that the only form of relief which could usefully be granted to Mr Swinbank was re-instatement of the appeal under rule 13.44 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). However, the Court found that re-instatement of the appeal would prejudice the respondent, Ms Stein, by putting the certainty of the original judgment at some risk of disturbance and by causing her to incur costs to defend the appealed judgment. The Court found that the appeal, if re-instated, would not have reasonable prospects of success, and therefore dismissed the application.

Orders