Whitmore & Whitmore

The case involves an appeal in family law matters between Mr Whitmore, the applicant, and Ms Whitmore, the respondent. The applicant sought leave to appeal out of time from final orders made by the primary judge on 23 November 2021 concerning their child and property. The applicant filed an Application in an Appeal on 29 March 2022, which was dismissed by the appeal registrar. The applicant then filed an Application for Review to challenge the appeal registrar's decision. The court was required to determine whether the applicant could appeal out of time and, if so, under what conditions.

The court considered the principles applicable to extending time for an appeal, as outlined in Gallo v Dawson and Jackamarra v Krakouer. The applicant must demonstrate a substantial issue to be raised in the appeal. The court found that the proposed grounds of appeal concerning the parenting orders had no reasonable prospect of success, but the property orders challenged were discharged and replaced. The court concluded that there was no utility in appealing from the orders. However, the applicant's alternate oral application for leave to appeal out of time from more recent orders made on 2 March 2022 was granted, subject to conditions.

The court granted the applicant's oral application for leave to appeal out of time from the orders made on 2 March 2022, subject to certain conditions. The appeal must be confined to the substance of Grounds 4, 5, and 6 as contained in the draft Notice of Appeal. The Notice of Appeal must be filed and served within 14 days, and the sum of $15,000 is preserved as security for the respondent's costs of and incidental to the appeal. The court dismissed the respondent's application for costs of the review application. The form of the order is subject to entry in the Court's records and may be subject to review or variation under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).