Lunde & Lunde [2025] FedCFamC1A 44 (14 March 2025)

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lunde & Lunde 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 re-instate an abandoned appeal.

1. The parties to the underlying original proceedings married in 2016 (at [46]).
2. They separated in October 2020 when the wife vacated the former family home with the children, leaving the husband in exclusive occupation of it (at [59]).
3. The wife immediately commenced proceedings for financial relief in October 2020 (at [3]), which were entertained by the Magistrates Court of Western Australia.
4. The husband failed to participate consistently with the litigation. He ignored many procedural orders (at [5], [9], [15]-[23], [28] and [70]). Some of the documents he did file were deficient (at [11]-[14] and [20]). He did not attend some court events (at [8] and [29]), though he alleges the magistrate was mistaken about his non-appearance at the event on 4 October 2024 (at [24]).
5. The position taken by the husband in the litigation was that, in 2020, the parties struck a "binding contractual agreement" which ousted jurisdiction to entertain the wife's application for property settlement relief (at [14], [16], [20] and [58]). Despite orders requiring it, the husband never produced the alleged document to either the wife or the Court (at [30]). By October 2024, the magistrate had evidently tired of the father's non-compliance and ordered that the wife's application for financial relief be heard on an "undefended basis" in December 2024 (at [24]).
6. On the date fixed for the trial in December 2024, the husband appeared, though without legal representation. The magistrate declined to let him actively participate in the hearing (at [31]). However, the magistrate took into account the documents the husband formerly filed (at [11] and [40]) and a letter he sent to the Court (at [26]), even though such documents were not relied upon by the wife as evidence of any admission against interest made by the husband (at [37]). It was an error of law to consider such extraneous material (Enns & Enns [2025] FedCFamC1A 21 at [18]-[22]), though it was an error from which the husband benefitted and about which the wife does not complain, so it is immaterial to the appeal (Conway v The Queen (2002) 209 CLR 203 at 207, 208, 217, 219, 220, 232 and 244).
7. Some factual assertions made by the husband within those extraneous documents bore upon the magistrate's deliberations (at [51] and [69]), even though untested by cross-examination. Conversely, the magistrate described the wife as having been cross-examined (at [49]), in which event her evidence was tested to some degree during the hearing.
8. Judgment was reserved and delivered two weeks later.
9. Relevantly, the orders provided for the sale of the jointly owned family home (Order 1), for the wife to conduct the sale as trustee (Orders 1 and 2), and for the husband to maintain the property in good order until he vacated it within two months (Orders 5, 6 and 7). The net sale proceeds were to be divided in shares of 65 per cent to the wife and 35 per cent to the husband (Order 3). Otherwise, the parties retained their chattels, superannuation and debts (Orders 9 and 10) and the husband was ordered to pay the wife's costs of $5,000 (Order 11).
10. The husband appealed from all orders on 16 January 2025.
11. By procedural orders made by the appeal registrar on 19 February 2025, the husband was obliged to file and serve the electronic transcript of the trial by 7 March 2025. He failed to do so and, accordingly, the appeal was deemed abandoned (r 13.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules")).
12. By an Application in an Appeal filed on 11 March 2025, the husband seeks that the appeal be re-instated and, additionally, that he be given an extension of time within which to file and serve the transcript, the totality of which he does not yet have.

1. In Allan & Ors & Allan & Ors [2014] FamCAFC 162; (2014) FLC 93-606, the Full Court said this about the legal principles which govern the disposition of applications to re-instate abandoned appeals:
   1. The discretion to re-instate an abandoned appeal is not exercised in an unstructured or unprincipled way, but rather in accordance with the established legal principles set out within Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 at 480 (see Haykal & Krawiec & Anor [2014] FamCAFC 110 at [31], [40]-[46]; Bemert & Swallow (2010) FLC 93-441 at [128]-[131]). As was made plain in Gallo v Dawson, the discretion may only be exercised in favour of the applicant upon proof that strict compliance with the Rules will "work an injustice upon the applicant".
2. As was observed in Farrington & Belkis [2024] FedCFamC1A 133:
   1. When an application is made for an extension of time within which to appeal, the merit of the intended appeal is pivotal. However, in cases like the present, where the default sought to be remedied instead relates to a failure to meet a time limit within a properly commenced appeal, the merit of the appeal is not the paramount consideration (Jackamarra v Krakouer (1998) 195 CLR 516 at [4], [7], [9], [33], [66] and [73]).
   2. Nevertheless, the ostensible merit of the appeal remains a material consideration because an applicant seeking the re-instatement of the appeal will not genuinely suffer any injustice if refused permission to do so as an unmeritorious appeal, if re-instated, is liable to then be summarily dismissed for the lack of any reasonable prospect of success (ss 46(2) and 46(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (" the FCFCA Act")).
3. Those principles are applied in this instance.

1. The husband requested that his re-instatement application be determined by hearing in open court, but that request is not granted. The Rules enable such applications to be determined in chambers on the papers (r 13.37(b)(ii)). The National Appeal Registrar referred the application to me for determination in that manner and I independently consider it appropriate to do so.
2. The husband is not thereby denied procedural fairness because he said all he could in support of the re-instatement application in his Amended Notice of Appeal, his affidavit, and his Summary of Argument, all filed on 7 March 2025.

1. On the evidence adduced by the husband in support of the application, it may be accepted that he could file and serve the transcript in readiness for the appeal hearing to proceed as originally scheduled on 9 April 2025. However, there is a more fundamental obstacle he is unable to overcome. Despite the husband's belief to the contrary, the appeal evinces no obvious merit. To re-instate it would cause prejudice to the wife, as she would then need to file her Summary of Argument by 28 March 2025 and then appear at the hearing on 9 April 2025 to resist the appeal. Her prejudice could only be partly remedied by a costs order against the husband, but only if he could meet any such costs order. He presently gives evidence of his difficulty raising funds to partly explain his failure to file the transcript on time.
2. Turning then to the grounds of appeal, which are pleaded in the Amended Notice of Appeal filed on 7 March 2025, none ostensibly seem meritorious.

1. Ground 2 alleges bias on the part of the magistrate, supposedly due to both judicial conduct and erroneous factual findings within the reasons for judgment, but there are some insuperable impediments to the success of this ground.
2. First, the ground does not distinguish between actual and apprehended bias, which concepts are mutually exclusive complaints (Newett & Newett (No 2) (2021) FLC 94-051 at [54] and [75]). The tests for each are quite different, so a litigant cannot blithely allege it could be one or the other. The husband alleges "apprehended bias" in his Summary of Argument, but only on account of the content of the reasons for judgment, which leads to the second impediment.
3. Secondly, apprehended judicial bias is not established by a litigant identifying adverse findings within the reasons for judgment. The reasons explain how and why the judgment was reached, which analytical process necessarily entails weighing the conflictual evidence and contrasting irreconcilable submissions. Inevitably, at least one party is disappointed by the result, but such retrospective disappointment does not demonstrate there were proper grounds to apprehend judicial bias at an earlier stage of the proceedings. A litigant's dissatisfaction with the result does not show judicial bias against that litigant (Newett & Newett (No 2) at [59]-[80]).
4. Thirdly, even if it now be assumed there was a proper basis for the magistrate's disqualification on grounds of either actual or apprehended bias, the husband waived the complaint by making no disqualification application at the time. The husband could not wait for the pronouncement of judgment to decide whether it was acceptable and, given he found it was unacceptable, then assert judicial bias in the appeal (Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [76] and [79]; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344, 357 and 360; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 577-579 and 586-588).

1. Ground 1 complains of the husband's denial of procedural fairness.
2. As articulated within the ground and the Summary of Argument, the denial is alleged to be evident from these events:

(a) the procedural decision made on 4 October 2024 for the hearing in December 2024 to proceed on an "undefended" basis;

(b) the wife's failure to comply with procedural orders made on 4 October 2024;

(c) the timing of the hearing during the "holiday season", which impeded the husband's prospects of obtaining legal representation;

(d) the husband's expectation the trial would proceed in January 2025 rather than in December 2024;

(e) the absence of any proper basis for the magistrate to make property adjustment orders;

(f) the magistrate's failure to "appropriately acknowledge" the husband's contributions over the parties' relationship; and

(g) the magistrate's failure to recognise the "legally binding" nature of the financial agreement between the parties.

1. None of those complaints could be made good.
2. It is as well to point out that the doctrine of procedural fairness is concerned only with the fairness of the trial process, not with the perceived fairness of the outcome of the litigation (SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 at [25]). The husband's complaints fundamentally misconstrue the application of the doctrine.
3. The inevitable consequence of the procedural decision to conduct the trial on an "undefended" basis was to deprive the husband of the right to actively participate. But such deprivation was intentional. The husband cannot now complain of the intended consequence of the procedural decision, if it was correctly made, because his prospective exclusion from the trial was the discretionary decision the magistrate had to make. Significantly, while the husband may disagree with the magistrate's decision to conduct the trial on an "undefended" basis, he does not assert in the appeal that the decision was not open. Nor could he. The reasons for the procedural decision were laid bare by the magistrate.
4. On 4 October 2024, the magistrate ordered the wife to file and serve certain documents 21 days in advance of the undefended hearing in December 2024 (at [24]). The husband alleges she did not comply with the orders, but he fails to articulate in what way she breached the order. It is evident from the reasons for judgment that the material relied upon by the wife at the trial did not breach the procedural order made in October 2024 (at [35]-[37]). While she did fail to file a Case Outline document (at [38]), that was inconsequential.
5. The timing of the trial was also inconsequential when the husband was not an active participant.
6. The last three complaints concern the validity of the decision made by the magistrate, not the fairness of the hearing conducted in December 2024 without the husband's input, so they do not engage the doctrine of procedural fairness.

1. Ground 3 amounts to an allegation that the property settlement orders made by the magistrate are vitiated by two considerations: first, the "legally binding private contractual agreement" between the parties; and secondly, the lack of any recognisable contributions made by the wife to the parties' property or the welfare of their children.
2. The first complaint is plainly wrong. The agreement to which the husband refers is not a financial agreement between the spouses proven by him to meet the mandatory requirements of Pt VIIIA of the Family Law Act 1975 (Cth) ("the Act"), in which event the agreement is not binding upon them, which in turn means the jurisdiction of the Court to make property settlement orders between the parties under Pt VIII of the Act was not ousted (s 71A). That reality was most recently explained by the Full Court in Duarte & Morse [2024] FedCFamC1A 95; (2024) FLC 94-192 at [80]-[81].
3. The second complaint must be rejected as being a bare statement of the husband's opinion. The magistrate addressed the evidence of the wife's contributions, as recognised under s 79(4) of the Act, including the parties' comparable lack of valuable assets when they began cohabiting (at [48] and [62]), the wife helping the husband to acquire the family home (at [50], [52] and [63]), the wife's provision of primary care to the parties' children before and after separation (at [53], [65], [67], [68] and [75]), and the husband's lack of provision of child support to the wife after separation (at [65]).
4. The factual findings accorded with the evidence adduced by the wife. The husband's disagreement with her evidence is of no moment when his irresponsible litigious conduct, as found by the magistrate, resulted in the procedural decision for the trial to proceed on an undefended basis. He spurned his chance to contest the proceedings at trial. He cannot now, in an appeal, run the case he wishes he had at first instance.

1. Ground 4 is a complaint about the parenting orders made between the parties on 18 December 2024 (at [24], [32], [33]) and is therefore incompetent. The time to file any appeal from the parenting orders expired on 15 January 2025, pursuant to r 13.03(1) of the Rules. This appeal, filed on 16 January 2025, lies only from the property settlement orders made on 20 December 2024.
2. With respect to the former parenting cause, it should be noted the husband failed to attend interviews with the single expert (at [21]) and he has declined to allow the children to spend time with him as the orders envisage (at [34]).

The wife's lawyers and the Independent Children's Lawyer

1. Ground 5 is a complaint about the professional performance of the wife's lawyer and the Independent Children's Lawyer ("the ICL").
2. The ICL played no role in the financial cause, so the complaint about him or her may be safely disregarded.
3. The complaint about the wife's lawyer is not a competent ground of appeal. The appeal can only be directed to some legal, factual or discretionary error made by the magistrate.

1. Since none of the grounds of appeal evince any reasonable prospects of success, it would be futile to re-instate the appeal for the husband's benefit and positively prejudicial to compel the wife to remain engaged in the litigation to refute it.
2. The re-instatement application is refused.
3. No question of costs arises.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.