Evelyn & Kozel [2025] FedCFamC1A 171 (19 September 2025)

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

Hardwick & Hardwick (No 2) (2022) FLC 94-126; [2022] FedCFamC1A 216

House v The King (1936) 55 CLR 499; [1936] HCA 40

Mawhinney v Australian Securities and Investments Commission and Ors (2022) 405 ALR 292; [2022] FCAFC 159

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11

Skelton & Lindop (2022) 64 Fam LR 61; [2022] FedCFamC1A 47

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

1. Leave to appeal is granted.
2. The appeal is allowed.
3. Orders 1 and 2 made on 16 May 2025 are set aside.
4. Order 1 made on 8 July 2025 is set aside.
5. The appellant's application under s 44(6) of the Family Law Act 1975 (Cth) ("the Act") for an extension of time within which to bring an application for financial relief under Pt VIIIAB of the Act is remitted for re-hearing by another judge.
6. The parties' applications for costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) are 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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Evelyn & Kozel has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons explain the grant of leave to appeal and the allowance of the appeal brought from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 16 May 2025 refusing the appellant's application under s 44(6) of the Family Law Act 1975 (Cth) ("the Act") for leave to bring her claim for financial relief under Pt VIIIAB of the Act out of time.
2. The application is remitted for re-hearing by another judge.

1. The parties were formerly in a de facto relationship.
2. The parties disagreed when precisely in 2017 their relationship broke down, but the dispute over that fact was not relevant before the primary judge because, regardless, the appellant's application for financial relief against the respondent under Pt VIIIAB of the Act was brought years out of time (at [2]-[3]).
3. The proceedings were commenced in October 2024 and the appellant's anterior application for the grant of leave to proceed under s 44(6) of the Act was listed for a threshold hearing before the primary judge on 16 May 2025. The appellant was represented but the respondent was not. He opposed the appellant's application.
4. The appellant relied upon her Initiating Application filed in October 2024, together with the evidence she nominated (at [8]). The hearing proceeded without cross-examination, as the parties were content to rely upon their written and oral submissions.
5. Significantly as it transpired, the appellant's application for final financial relief was stated as follows in her Initiating Application filed on 15 October 2024:
   1. That the [appellant] be excused from particularising the final property orders that she seeks pending disclosure being made between the parties.
6. When the appellant's counsel began her submissions, her Honour interjected to identify the perceived lacuna in her application for an extension of time to bring her financial claim. This exchange occurred with counsel:

HER HONOUR: I think the difficulty that your client has and that you will need to address, and I'm not sure your client can overcome, is that she doesn't have an application before the court in proper form. So, she has filed her initiating application seeking final orders that she be excused from particularising the final property orders that she seeks, pending disclosure, and I don't think I can be satisfied, applying that test, that she has reasonable prospects, a sufficient likelihood of success in her claim because she doesn't have a claim. So, I think your client's application has to fail. I think it needs to be dismissed. And I will need you to address me on that, because if you don't overcome that part of the test, then my discretion doesn't arise.

[Counsel for the appellant]: I appreciate that, your Honour, and thank you for bringing it to our attention at the outset of the day. The difficulty that my client has about this is, especially given the length of time that has passed, she simply cannot particularise her claim without knowing what assets the [respondent] presently has.

HER HONOUR: She has to make a claim, and it can be a claim that is later amended, but at the moment she doesn't have a claim. She be excused from particularising the final property order she seeks, she doesn't actually seek property orders. There's no relief sought under section 90SM, there's no declaratory relief sought. What claim am I to assess? So, the Full Court in Edmunds said I can look at something that falls short of her claim, but she doesn't have a claim before the court.

...

[Counsel for the appellant]: ... I can understand the difficulty in assessing, exactly as your Honour said, I can understand the difficulty in assessing my client's entitlements when she hasn't particularised the application specifically ...

(Transcript 16 May 2025, p.9 line 28 to p.10 line 2; p.11 lines 34-37)

(Emphasis added)

1. Faced with that impediment, the appellant's counsel applied for, first, an adjournment and when that was refused, secondly, for permission to amend the claim immediately, which was also refused. This exchange occurred:

[Counsel for the appellant]: Conscious of that, your Honour, would your Honour grant an adjournment in order for my client to address this issue?

HER HONOUR: No. No, I won't. She has been legally represented. She has had time. There have been numerous affidavits filed. Counsel has been briefed. You've drafted the submissions. [The respondent] has had to respond to what's here before me. This is the application that's before the court ...

...

[Counsel for the appellant]: ... Would your Honour permit me to orally amend the application on my feet?

HER HONOUR: No, because it wouldn't be procedurally fair to [the respondent].

[Counsel for the appellant]: And you won't permit me to seek an adjournment in the circumstances?

HER HONOUR: No, because you've started the case.

(Transcript 16 May 2025, p.10 lines 14 -20; p.11 lines 10-18)

(Emphasis added)

1. Her Honour than gave ex tempore judgment and relevantly gave these reasons:
   1. The [appellant's] application does not even articulate that she seeks an alteration of property interests pursuant to section 90SM of the Act. I have inferred that from the reference to the words "property orders" in her application for final orders, but it is only a foreshadowed application. It is not an application that is currently before the court.
   2. I am therefore unable to assess if there is sufficient likelihood of the [appellant] succeeding with her claim, or even something that falls short of her claim as envisaged by the Full Court in Edmunds & Edmunds, if leave was granted for her to apply for a property order under Part VIIIAB of the Act. Accordingly, I am not satisfied hardship would be caused to the applicant if leave were not granted for her to make an application outside of the standard limitation period. It is therefore unnecessary for me to consider the matters that would be relevant to the exercise of the court's discretion if hardship was established, such as the reasons for the delay in the applicant filing her application, which was the subject of much of the evidence before the court.
   3. I foreshadowed these difficulties during the hearing and provided the parties the opportunity to make submissions against the course I proposed, being to dismiss the application. Counsel for the [appellant] conceded she was unable to do so from a legal perspective, conceding her client had not articulated her claim, and sought an opportunity to amend her client's application orally. That request was refused because it would not be procedurally fair to the respondent. Counsel then asked if the court would allow an adjournment. That request was refused given the hearing was already underway.

(Footnotes omitted)

(Emphasis added)

1. Her Honour dismissed the appellant's application for leave to proceed under s 44(6) of the Act (Order 1), dismissed her consequential application for interlocutory financial relief (Order 2), and made procedural orders to deal with the respondent's costs application later (Orders 3-6). Later, a costs order was made against the appellant in favour of the respondent, to which it is necessary to return.
2. The appellant sought to appeal from those orders on 30 May 2025, recognising she required an anterior grant of leave to appeal because the principal order denying an extension of time within which to pursue the financial claim (Order 1) is interlocutory in nature (Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [25]; Edmunds & Edmunds [2018] FamCAFC 121; (2018) FLC 93-847 at [10]).
3. The validity of Order 2 is inexorably hitched to the validity of Order 1. If the application for leave to appeal and the appeal from Order 1 is successful, both orders must be set aside. The converse would also be true. No appeal lies from the procedural directions (Orders 3-6), which do not affect the appellant's rights in any way.

1. The grant of leave ordinarily requires the applicant to show the decision at first instance is attended by sufficient doubt to warrant appellate scrutiny and, additionally, substantial injustice would result if leave were refused, supposing the decision at first instance to be wrong (Medlow & Medlow (2016) FLC 93-692 at [44]-[57]). Advertence to the proposed grounds of appeal is necessary to decide whether sufficient doubt attends the judgment.
2. The grounds of appeal are pleaded in the Amended Notice of Appeal filed on 25 August 2025. They advance two complaints.
3. First, it is contended the primary judge denied the appellant procedural fairness by not giving her the right to be heard on the merits of her application (Ground 1) and by refusing her application to amend the substantive claim for relief (Ground 2).
4. Secondly, it is contended the incompetence of the appellant's legal representatives caused a miscarriage of justice (Ground 3).
5. Discussion of the grounds reveals why Order 1 is vitiated, though not for the reasons advanced by the grounds. If the order is not set aside, the appellant suffers the substantial injustice of being deprived of the right to argue for an extension of time within which to prosecute her substantive claim for financial relief, so leave to appeal is granted.

1. Although Grounds 1 and 2 are couched as complaints of the denial of procedural fairness, the appellant's grievance is not truly characterised in that way. The parties agreed the complaint is really of discretionary error, asserted this way in the appellant's Summary of Argument:
   1. It is acknowledged that procedural fairness is concerned with the fairness of the hearing, not with fairness of the result. The gravamen of this appeal is not that the primary judge erred in exercising her discretion not to grant leave to proceed out of time, but rather that the discretion was not exercised at all and the application for leave was not properly considered.

1. Her Honour heard the appellant's submissions but was not satisfied that her application for an extension of time had any merit because she could not demonstrate hardship (at [17]). But as the appellant was heard, she was not denied procedural fairness in the conventional way.
2. The perceived demerit of the application to extend time was identified to be the appellant's failure to plead, with any particularity, the substantive financial relief she sought, as that failure deprived the primary judge of the ability to gauge the hardship the appellant would suffer if refused leave to proceed out of time (at [14]-[17]). But that defect could easily have been cured by her Honour allowing the appellant to amend the terms of her claim for substantive financial relief, either by granting the request to orally amend the claim then and there or by granting a short adjournment within which to do so.
3. The primary judge said the grant of the application for a short adjournment for that purpose would be procedurally unfair to the respondent (at [18]), but that is not correct. The respondent did not say he would be deprived of procedural fairness by a short adjournment being granted, because he was not asked. He might have consented. Nor did the primary judge say the denial of procedural fairness to the respondent was a reason for denying the appellant's adjournment application when it was made and refused. Her Honour and the appellant's counsel had this exchange at the time:

[Counsel for the appellant]: ... would your Honour grant an adjournment in order for my client to address this issue?

HER HONOUR: No. No, I won't. She has been legally represented. She has had time. There have been numerous affidavits filed. Counsel has been briefed. You've drafted the submissions. [The respondent] has had to respond to what's here before me. This is the application that's before the court. And the whole application at the moment - there isn't, there just simply isn't a property application in proper form before the court.

(Transcript 16 May 2025, p.10 lines 14-22)

1. Her Honour only said it would be procedurally unfair to the respondent to allow the appellant to orally amend the terms of her claim for financial relief on the spot, but again, without asking the respondent if that were so.
2. Her Honour had this subsequent exchange with the appellant's counsel:

[Counsel for the appellant]: ... Would your Honour permit me to orally amend the application on my feet?

HER HONOUR: No, because it wouldn't be procedurally fair to [the respondent].

[Counsel for the appellant]: And you won't permit me to seek an adjournment in the circumstances?

HER HONOUR: No, because you've started the case.

(Transcript 16 May 2025, p. 11 lines 10-18)

1. The respondent could not have reasonably complained of being denied procedural fairness by either the grant of a short adjournment or by the immediate amendment of the appellant's financial claim for two reasons.
2. First, the respondent opposed the appellant being permitted to prosecute any financial claim, regardless of the specific orders she would propose, so neither the adjournment nor the amendment could have made any difference to his position.
3. Secondly, even though the respondent opposed the extension application, his opposition was inconsistent with the position he simultaneously adopted about the need for property adjustment orders to be made. Inferentially at least, the respondent agreed about the need for the dispute over the division of their property to be judicially determined, so the refusal of the appellant's adjournment and amendment applications and the consequential dismissal of her claim for substantive financial relief was also prejudicial to him.
4. As things stand, neither party can resolve their property dispute without the Court's imprimatur. The sum of about $140,000 is still being held in trust for the parties following the sale of a jointly owned property, of which property the appellant was formerly the sole owner. Both parties advocated for an order dividing those funds between them. While the respondent sought an equal division, the appellant sought a greater share of the funds on account of her allegedly greater contributions. The respondent is presently entitled to one-half of the trust funds without any property adjustment order, as that is his existing legal interest in the funds, though there were and still are two impediments. The trustee will not release the funds while the parties still actively dispute their entitlement to the money. Moreover, the respondent maintained in written submissions the Court should compel the trustee holding the funds to produce trust account records for the period between 2019 and 2025, which compulsion would only be possible by the issue of a subpoena within a valid pending financial cause.
5. The refusal of an adjournment may be manifestly unreasonable and, hence, the subject of complaint in an appeal if the inevitable consequence is to deny a party procedural fairness (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40]). It proved to be so in this case. The refusal of the appellant's oral adjournment and amendment applications was manifestly unreasonable (House v The King (1936) 55 CLR 499 at 504-505) because the refusals deprived the appellant of the chance to easily remedy the only defect identified by the primary judge in her application to extend time, the cure of which defect would not cause the respondent any countervailing prejudice. The decisions to refuse the applications to amend and adjourn thereby vitiated the decision to dismiss the application for an extension of time.
6. To illustrate the point, had the primary judge allowed the appellant's counsel to amend the Initiating Application (either immediately or following a short adjournment) by claiming the payment of a modest cash sum from the respondent, it would hardly then have been open for her Honour to maintain it was impossible to assess the hardship the appellant would suffer by being deprived of the chance to prosecute the claim. Even if the application for the extension of time might have then failed at the next discretionary stage of the enquiry, the appellant would not have been unreasonably deprived of the chance to put her best case forward.
7. Such an analysis of the manifest unreasonableness of refusing the adjournment application makes it necessary to clarify the effect of s 26(2)(b)(ii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("the FCFCA Act"). The refusal of the appellant's adjournment application is legitimately attacked as a miscarriage of discretion in this appeal brought from the order dismissing the application for an extension of time, as the anterior decision vitiates the dismissal order itself (s 36(5) of the FCFCA Act; Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 482-484 and 494-497). The appeal is not thwarted by s 26(2)(b)(ii) of the FCFCA Act, as was recently explained by the Full Court (Chong & Kerimowa [2025] FedCFamC1A 158 at [33]), because this appeal is not brought directly from the decision to refuse the adjournment, but rather from the ultimate order dismissing the application for an extension of time to bring the substantive claim for financial relief.
8. Aside from impugning the anterior refusal of the adjournment and amendment applications, the decision to refuse the extension of time on the available material also represents a miscarriage of discretion. In advance of the hearing before the primary judge, both parties filed affidavits, financial statements, and written submissions setting out the evidentiary context for the resolution of the financial claim. Even if the appellant's failure to particularise the precise nature of her financial claim within her Initiating Application made it difficult for the primary judge to assess the hardship she would supposedly experience if denied the chance to bring the claim belatedly, as her Honour said it would (at [17]), there was still a factual premise to permit that exercise to be undertaken anyway. Her Honour was mistaken to say there was not (at [17]). Her Honour failed to take such evidence into account.
9. For example, the untested evidence was liable to establish these facts, which ostensibly favoured the appellant's case:

(a) the parties and the trustee disagreed over the release of the residue funds of about $140,000 realised on the sale of the jointly owned property, which property the appellant formerly solely owned;

(b) the respondent sold another parcel of real property in December 2023 and exclusively retained the net sale proceeds of $192,000, even though the appellant was a joint debtor under the secured loan after it was an earlier re-financed;

(c) the respondent received and kept lump sum compensation of $220,000 after the parties' separation;

(d) the respondent described himself as the "business owner" of the business entitled [business name], which implied his expectation of future financial success, which contrasted sharply with the appellant's pessimistic economic future;

(e) the respondent's financial statement was ostensibly bereft of adequate financial disclosure, even though he bore a duty of full and frank disclosure due to his admission of formerly having been in a de facto relationship with the appellant; and

(f) the appellant, who was the children's primary carer, was labouring under medical and financial difficulties.

1. Moreover, the parties were still engaged in allied litigation in respect of their children (then aged 11 and seven years) under Pt VII of the Act, which cause of action was instituted at the same time as the de facto financial cause under Pt VIIIAB of the Act in October 2024. The result of those proceedings would inevitably affect the parties' financial responsibility for the children's support and bear upon the resolution of the financial cause.
2. The parties certainly gave different accounts in their affidavits about their respective contributions to their property and family. The respondent deposed in his affidavit to both his greater contributions and to the appellant's perfidy but, as the evidence was not tested, the appellant's evidence had to be accepted at its highest for the purpose of determining the application under s 44(6) of the Act. The primary judge correctly recognised that to be so, citing Skelton & Lindop [2022] FedCFamC1A 47; (2022) 64 Fam LR 617 (at [11]), and so the appellant's evidence afforded a platform upon which her Honour could conceivably be satisfied her financial claim had sufficient likelihood of success that she would suffer hardship if deprived of the chance to prosecute it - that being the relevant test (Hardwick & Hardwick (No 2) (2022) FLC 94-126 at [23]-[29]).

1. The third ground contends a miscarriage resulted from the incompetence of the appellant's former lawyers, but it was unnecessary to call the lawyers' competence into question because the proper test for appellate intervention is whether a miscarriage occurred, howsoever it was caused (TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [25], [31], [63], [79] and [97]; Mawhinney v Australian Securities and Investments Commission and Ors [2022] FCAFC 159; (2022) 405 ALR 292 at [118]).
2. This ground seems quite inconsistent with the first two grounds, under which the appellant asserts the primary judge erred by refusing the reasonable applications made by her then lawyers for an adjournment or an amendment. The appellant cannot responsibly approbate her lawyers' professional performance in prosecuting the first two grounds of appeal but then reprobate their performance when prosecuting the third ground.
3. The miscarriage of justice is manifest in the primary judge dismissing the application to extend time to bring the financial claim without taking into account the available evidence, particularly having first refused the appellant's application to amend the particulars of her claim (either with or without a short adjournment) to easily cure the defect her Honour identified, without causing undue prejudice to the respondent. Once the defect was identified by her Honour during the hearing, the appellant's counsel did all she could to avert the outcome of the dismissal of the extension application by applying, first, for an adjournment to amend the claim and, secondly, by applying for permission to orally amend the claim without any adjournment.

1. Leave to appeal is granted and the appeal is allowed.
2. Orders 1 and 2 made on 16 May 2025 are set aside.
3. It is also necessary to set aside the costs order later made against the appellant by the primary judge on 8 July 2025 by reason of the dismissal of her application under s 44(6) of the Act. Such an ancillary order is permissible (s 36(1)(b) of the FCFCA Act).
4. The appellant sought the remitter of her application under s 44(6) of the Act for re-hearing by another judge as a remedial order within her Amended Notice of Appeal but, at the hearing, equivocated about the discretion being re-exercised if the appeal succeeded. She acknowledged the latter option was not reasonably open when the respondent claimed he would be taken by surprise if called upon to make submissions about the disposition of the s 44(6) application on the merits. The application is therefore remitted.
5. The appellant did not seek costs against the respondent. She instead sought costs certificates, as did the respondent. While the appeal succeeded, that was due to the miscarriage of discretion, not due to an error of law, so it is not permissible to grant the parties' costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth).

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.