Jakobsson & Jakobsson [2025] FedCFamC1A 47 (17 March 2025)

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 Jakobsson & Jakobsson has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The time for the applicant to appeal from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 24 December 2025 is extended for the following reasons.

1. On 24 December 2024, property settlement orders were made between spouses to finalise a financial cause under Pt VIII of the Family Law Act 1975 (Cth) ("the Act").
2. The time within which to file an appeal from that judgment expired on 21 January 2025. No appeal was filed. Several weeks later, on 7 February 2025, the husband filed an Application in an Appeal seeking an extension of time within which to file an appeal. The application was resisted by the wife. The disputed application was heard on 3 March 2025 and dismissed by the appeal registrar on 4 March 2025.
3. On 5 March 2025, the husband filed an Application in an Appeal to review the appeal registrar's decision. He sought the discharge of the appeal registrar's orders, the grant of an extension of time within which to bring his appeal, and an order staying the appealed orders until the disposition of the appeal.
4. The review application was listed for hearing on 17 March 2025, at which time the husband relied upon:

(a) his two affidavits filed on 7 and 12 February 2025 in support of the extension application, to the latter of which his corrected Notice of Appeal was annexed;

(b) his three sets of written submissions filed on 24, 26 and 28 February 2025; and

(c) his affidavit filed on 5 March 2025 in support of the review application.

1. The wife opposed the review application. She relied upon:

(a) her affidavit filed on 18 February 2025 in rebuttal of the extension application;

(b) her affidavit filed on 14 March 2025 in rebuttal of the review application; and

(c) her two sets of written submissions filed on 25 February 2025 and 14 March 2025.

1. This review hearing is an original hearing of the husband's application for an extension of time within which to appeal from the orders made on 24 December 2024.
2. The legal principles which govern the disposition of applications for leave to appeal out of time were expressed as follows in Whitmore & Whitmore [2022] FedCFamC1A 75:
   1. Countless decisions have addressed the principles which apply to the determination of applications to extend time to appeal. Inevitably, they all lead back to principles enunciated by the High Court of Australia in Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 and Jackamarra v Krakouer (1998) 195 CLR 516.
   2. Essentially, the applicant seeking the extension of time must demonstrate that there is a substantial issue to be raised in the appeal, for otherwise it is pointless granting the extension of time to bring it. That issue is always central to the inquiry, though other considerations then influence the exercise of discretion. Such other considerations are unconfined but include the extent of the delay, the cogency of the reasons offered by the applicant for the delay, whether hardship or prejudice would accrue to the respondent if an extension of time were granted, and the public policy of ensuring that finalised litigation is not unnecessarily re-opened.
3. Those principles are applied.

1. The first enquiry is whether the proposed appeal raises a substantial issue. If that enquiry is answered affirmatively, it is then necessary to address other discretionary considerations such as the explanation offered for the delay and any prejudice which might be visited upon the opposing party by extending the time to appeal.
2. The husband intends that the appeal challenge only some orders made by the primary judge, being: an order requiring him to make a cash payment of $123,881 to the wife (Order 5); an order, in the event of his non-compliance with Order 5, requiring the sale of a parcel of real property, the proportional division of the net proceeds of sale, and the base amount of $36,399 being split from his superannuation interest for the wife's benefit, provided the superannuation trustee is given procedural fairness in respect of the splitting order (Order 8); and a procedural enforcement order (Order 9).
3. All seven proposed grounds of appeal allege the primary judge "erred in law", though that is apt to mislead as most grounds are instead permeated by the flavour of alleged discretionary errors. For present purposes, it is only necessary to consider the first ground, which appears to raise a substantial issue for consideration in the appeal.
4. Ground 1 alleges the primary judge erred by making the default superannuation splitting order (Order 8(d)(iv)) in breach of s 90XZD(1) and s 90XS(2) of the Act, which provisions collectively preclude any splitting order from being made unless the superannuation trustee has been given procedural fairness.
5. At the outset, it should be observed the primary judge was in a difficult position. His Honour determined the wife was entitled to 60 per cent of the parties' assets and superannuation. To receive that share, the wife needed to receive an extra $123,881 in property, yet the parties' assets had a net value of only $318,543, their superannuation interests were collectively valued at only $118,565, the husband opposed any superannuation splitting order being made and, although the wife might have envisaged a superannuation splitting order, she had not given any superannuation trustee procedural fairness by serving notice of her proposed orders.
6. His Honour made orders giving the husband the chance to arrange his affairs to pay the sum of $123,881 to the wife so he could retain the assets and superannuation he desired. In default, real property was to be sold, the sale proceeds distributed in designated proportions, and a superannuation splitting order would apply to one of his superannuation interests.
7. The primary judge said this in respect of the default superannuation splitting order:
   1. [The husband] has opposed any orders being made in respect of the parties' superannuation interests...
   2. If the orders I make involve a superannuation splitting order, the point made by [the husband] is that there is no evidence of procedural fairness being given to the Trustees. I accept this is so. It was not contended otherwise. [The wife's] counsel accepted it as a deficiency in the evidence. However, I also agree that orders can be made, subject to procedural fairness being afforded, and provided there is no objection raised in that process by any of the superannuation fund managers.

...

1. If that cannot be achieved, orders for the sale of [the former matrimonial home], and for superannuation splitting, can satisfy the causes of justice and equity in default.

...

1. I consider in the circumstances that it is appropriate to make a default superannuation splitting order in relation to [the husband's] [named superannuation fund]. The base amount ought to be $36,399. That order will necessarily be subject to procedural fairness being afforded to [the fund]. Whilst that is not ideal, I do not consider that a prolongation of these proceedings to give effect to an adjustment of property interests in the circumstances it is appropriate, and I am prepared to make an order in these terms as a default order, should [the husband] be unable to meet the refinance orders in the orders to make a cash payment to [the wife].

1. The primary judge was evidently conscious that the default superannuation splitting order was being made without the superannuation trustee first having had procedural fairness in respect of it, but the imperative provisions of s 90XZD(1) of the Act thereby deprived his Honour of statutory power to make the splitting order (Naisby & Naisby (2021) FLC 94-025 at [26]-[45]).
2. Crafting the splitting order to make its operation conditional upon the superannuation trustee being given subsequent notice of it did not cure the deficit of the lack of any anterior procedural fairness to the trustee. What could the trustee have done if he, she or it objected to the order? The matrimonial financial cause was already concluded, so the trustee could not revive the cause to agitate the objection. The trustee could only then refuse to comply with the order. The wife could then have sought to enforce the order against the trustee, but it could hardly be enforced if it was made unlawfully in the first place and the trustee's objection was valid.
3. The only course properly open to the primary judge was a short adjournment of the trial so the husband's superannuation trustee could be given advance notice of the proposed superannuation splitting order and thereby afforded the chance to object to it. Absent objection, the order could be lawfully made. In the face of some valid objection upon resumption of the trial, his Honour would have had to craft different orders to conclude the financial cause without resort to a superannuation splitting order.
4. As the superannuation splitting order is an integral component of the property adjustment orders, the judgment of the primary judge appears vitiated. The wife could offer no rational explanation as to how the judgment could be defended.
5. The husband only advances a weak explanation for his delay of 17 days in filing the appeal, but the wife cannot claim undue prejudice in having to meet what appears to be a strong appeal (at least in respect of Ground 1) by a delay of modest duration.
6. The husband shall have the indulgence of one more day within which to file his Notice of Appeal from the orders made on 24 December 2024.
7. The ancillary application made by the husband for the stay of the appealed orders is refused. Rule 13.12(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) requires any stay application to be filed in the registry in which the appealed orders were made and, if possible, to be heard by the primary judge. Once he files his appeal, as permitted, he may make a stay application to the primary judge.
8. Neither party applied for costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.