Basu & Misra (No 2) [2025] FedCFamC1A 76 (2 May 2025)

IT IS NOTED that publication of this judgment by this Court under the pseudonym Basu & Misra (No 2) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons explain the dismissal of an application to stay the operation of a divorce order, found to be valid by a judge of this Court in the exercise of appellate jurisdiction under the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("the FCFCA Act"), pending the determination by the High Court of Australia of an application for special leave to appeal.

1. On 6 September 2024, a divorce order was made, granting the husband's application over the wife's objection, by a judge of the Federal Circuit and Family Court of Australia (Division 2). The order was expressed to take effect on 7 October 2024, but that was the date upon which the order would have ordinarily taken effect anyway under s 55(1)(a) of the Family Law Act 1975 (Cth) ("the Act").
2. The wife appealed on 4 October 2024, which had the consequence of postponing the operation of the divorce order whilst the appeal was pending (s 55(3)(a) of the Act).
3. The wife's appeal was dismissed with costs by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 7 March 2025 (Basu & Misra [2025] FedCFamC1A 35).
4. The divorce order was therefore due to become operable at midnight on 8 April 2025 upon the expiration of one month from the dismissal of the appeal (s 55(3)(a) of the Act). To calculate that time, the calendar month (r 15.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)) excluded the day the appeal was dismissed (r 15.05(2)) but included the day on which the month ended (s 36(1) of the Acts Interpretation Act 1901 (Cth)).
5. On 8 April 2025, the wife filed an application in the High Court of Australia seeking special leave to appeal from the intermediate appeal judgment of this Court. The special leave application was filed several days outside the limitation period and so now requires the grant of an extension of time for it to be considered (rr 4.02 and 41.02 of the High Court Rules 2004 (Cth)), which has not yet been granted, so far as is known.
6. That same day, contemporaneously with the filing of the special leave application, the wife filed an Application in an Appeal in this Court seeking a stay of the divorce order pending the determination of her special leave application and, if successful, then her substantive appeal to the High Court of Australia.

1. The application is dismissed because there is no power to make the stay order.
2. The operation of the divorce order was postponed whilst ever there was an appeal pending from the divorce order (s 55(3)(a) of the Act), for which purpose an "appeal" is defined to include an "application for leave to appeal" (s 55(5)(a) of the Act).
3. Importantly, however, the statutory definition of "appeal" does not extend to include, either expressly or inferentially, an "application for special leave to appeal". There are two reasons for that conclusion: first, the terms of the governing legislation; and secondly, the different nature of the two types of leave application.
4. Appeals were formerly governed by the provisions of Pt X of the Act, wherein applications for leave to appeal to this Court (s 94AA) were differentiated from applications for special leave to appeal to the High Court of Australia (s 95). On 1 September 2021, Pt X of the Act was repealed and replaced by comparable provisions within the FCFCA Act which similarly differentiate applications for leave to appeal to this Court (s 28) from applications for special leave to appeal to the High Court of Australia (s 55). Given such express differentiation, had the legislature intended a divorce order to be suspended while an application for special leave to appeal was pending before the High Court of Australia then the definition of "appeal" within s 55(5)(a) of the Act would specifically include such applications, but it does not.
5. It is understandable why the definition of "appeal" would not include applications for special leave to appeal filed in the High Court of Australia. An application made to Australia's peak appellate court for "special leave to appeal" is readily distinguishable from an application ordinarily made to this Court for "leave to appeal". As appellate screening processes go, the former is far more exacting than the latter because the orders which are the subject of the intended ultimate appeal have already been through an intermediate appeal.
6. An application for "leave to appeal" to this intermediate appellate court is made pursuant to s 28 of the FCFCA Act and is governed by guideline principles directing attention to the supposed merit of the intended appeal and the private injustice which would arguably result from the denial of leave to appeal (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177; Medlow & Medlow (2016) FLC 93-692 at [44]-[57]). However, by contrast, an application for "special leave to appeal" to the High Court of Australia is instead made pursuant to s 55(2) of the FCFCA Act and is governed by the provisions of s 35A of the Judiciary Act 1903 (Cth), directing attention primarily to the asserted public importance of the intended appeal.
7. The filing of the application for special leave to appeal in the High Court of Australia by the wife did not, therefore, engage ss 55(3)(a) and 55(5)(a) of the Act for a second time and so the divorce order became operable at midnight on 8 April 2025 upon the expiration of one month from when the appeal was dismissed on 7 March 2025 by this Court.
8. Before the appellate jurisdiction of this Court was exhausted, the judge could have made an order extending the time during which the divorce order would be suspended (s 55(2)(a) of the Act), having regard to the possibility of a further appeal by the wife to the High Court of Australia, assuming the anterior grant of special leave to appeal to her, but his Honour did not do so. Nor could such an order be made now.
9. Even though the wife filed her stay application in this Court before the divorce order became operable by force of statute, it is impossible to now grant the stay she seeks nunc pro tunc. The legal principles which she purports to call to aid in both her stay application and supporting affidavit (Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681) only empower this Court to stay orders pending the disposition by the High Court of Australia of an application for special leave to appeal if the orders derive operable force from their own terms. Such legal principles do not invest the Court with power to suspend or override statutory provisions. The mandatory terms of the Act which govern when divorce orders become operable (s 55) usurp the Court's power to stay the divorce order in an exercise of discretion. Furthermore, once the divorce order took effect, any entitlement to appeal from it was removed (s 60).

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin.