Pastore & Pastore [2025] FedCFamC1A 135 (23 July 2025)

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

1. This appeal is listed for final hearing today. It is in respect of property orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 16 January 2025. The appellant has not filed a Summary of Argument in accordance with the directions of the appeal judicial registrar, to which I shall return shortly, and now seeks an adjournment of the appeal for some three months so he can borrow funds to instruct lawyers to appear for him at the appeal.
2. In considering the application it is useful to have some regard to the history of this matter.
3. On 25 February 2025, a Notice of Appeal was filed by the lawyers acting on behalf of the appellant. As any appeal had to be taken by 13 February 2025, that Notice of Appeal was to no effect. Subsequently on 3 March 2025, the appellant filed an application for an extension of time in which to file a Notice of Appeal. On 17 March 2025, orders were made extending the time in which a Notice of Appeal could be filed. That is to say, there is already one significant default in the preparation of the appeal by or on behalf of the appellant.
4. On 12 May 2025, an appeal judicial registrar made orders for the preparation of the appeal. One of the orders made was that the appellant was to file and serve a Summary of Argument by 20 June 2025. No such Summary of Argument has been filed.
5. A Summary of Argument is a significant document. It requires the appellant to include in it a statement of the arguments setting out the points of law or fact and the authorities relied on, together with the references to relevant pages of the Appeal Book and transcript so as to identify the precise arguments to be put on appeal (see r 13.23 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules")). It is a document of such significance that it can easily be described as a requirement under the Rules. Failure to meet a requirement under the Rules justifies the Court in dismissing the appeal for that failure, regardless of anything else (see r 13.45 of the Rules). That is the second default on behalf of the appellant.
6. On 5 June 2025, the appellant filed an Amended Application in an Appeal seeking reinstatement of the appeal for failure to lodge the transcript and seeking orders in relation to that. On that occasion the appellant was again represented by lawyers. The appellant was successful but that was the third default on the part of the appellant in the prosecution of this appeal.
7. He now appears this morning without the benefit of a Summary of Argument, or lawyers, and seeks an adjournment. He says he has not been able to comply with the orders of the appeal judicial registrar because he has not been able to obtain funds to instruct lawyers. That is somewhat hard to accept in full given he has had lawyers acting for him in the past, but I accept that he has not been in a position to pay them to prosecute the appeal. He hopes to be in such a position in three months, and he will seek to borrow funds to enable him to do that. He does not identify any source of funds, and I am extremely sceptical as to whether any such source of funds will present itself. I am far from persuaded that in three months' time the appellant will be in any different position.
8. Taking that matter into account and the repeated defaults on behalf of the appellant in the prosecution of this appeal, I am not persuaded it is in the interests of justice to grant an adjournment. The Court and the respondent have a legitimate juridical interest in the prompt disposition of this appeal. The application is refused.

1. I have given the appellant several opportunities to make submissions in support of his appeal, notwithstanding that strictly speaking he is not entitled to do so given his failure to lodge a Summary of Argument. Unsurprisingly, and I say this without criticism, he was unable to do so. The Notice of Appeal was drafted by counsel and raises legal issues. It is unsurprising that a litigant in person who has not prepared the Notice of Appeal may not be in a position to deal with those issues. There are however some difficulties with the grounds of appeal which can be dealt with fairly briefly.
2. As the first ground makes clear, the primary judge did not arrive at a percentage identification of the parties' respective contributions. Whilst that is the usual course, it is not the only course, as is made plain by the Full Court in Boulton & Boulton [2024] FedCFamC1A 132; (2024) FLC 94-202, especially at [92] and following. That will therefore be a very difficult ground to sustain.
3. Ground 2 raises questions of whether the primary judge failed to consider the impact, or adequately consider the impact, of the assessment of contributions on the parties' future needs. That is an unfortunately drafted ground of appeal in that it conflates two quite distinct grounds.
4. The first is that there was a complete failure to consider the impact of future needs. It is a valid ground of appeal. There is discussion of future needs at [105]-[107] of the primary judge's reasons. Thus, the primary judge did consider that question and the first iteration of the ground must fail.
5. The second is merely an attribution of inadequate weight. Such submissions face a significant bar (Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513; Gronow v Gronow (1979) 144 CLR 513). Indeed, the current approach to questions of weight is that the inappropriate attribution of weight must be such as to render the outcome unreasonable or plainly wrong within the meaning of House v The King (1936) 55 CLR 499 (Hedlund & Hedlund [2021] FedCFamC1A 84; (2021) FLC 94-065). The Notice of Appeal does not contend such a result. This aspect of the ground must also fail.
6. The third ground posits inadequate reasons. I have not received the benefit of any submissions as to the details of why the reasons are inadequate. Doing the best I can and reading the primary judge's reasons, I am able to follow the reasoning process and the reasons are therefore adequate (Bennett and Bennett [1990] FamCA 148; (1991) FLC 92-191; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110).
7. The final ground is as follows:
   1. Having concluded that the 38.5%/61.5% split of the parties' assets was just and equitable in the circumstances, the learned trial judge erred in failing to make orders that reflected the percentage split

(As per original)

(Notice of Appeal filed 24 March 2025)

1. I do not understand the ground. The primary judge did not divide the property on a percentage basis. After identifying the parties' contributions and the s 75(2) factors, the primary judge noted that the husband already had 38.5 per cent of the property pool and identified the assets that comprised it and then found it appropriate in those circumstance for a property owned by the parties to be transferred to the wife. The significance of the percentage escapes me.
2. It follows that I cannot be persuaded there is any error. I am satisfied there is no apparent merit in any of the grounds of appeal. That, coupled with the failure to file a Summary of Argument, persuades me that the appropriate course is to dismiss the appeal.

1. An application has been made by the respondent for the costs of the appeal calculated in accordance with Sch 3 of the Rules in the sum of $19,848.63.
2. The matters to be taken into account in considering whether there are circumstances justifying the Court in departing from the usual position that each party bears their own costs are set out in s 114UB(3) of the Family Law Act 1975 (Cth). The relevant matters raised by the parties are that the respondent still has the care of two of the children of the marriage; the appellant, as I have said, has repeatedly defaulted on the orders and requirements to run the appeal which has involved the respondent in extra costs to deal with the applications necessitated by those defaults; and the appeal has been wholly unsuccessful.
3. I am satisfied in the circumstances that it is just to make the order as claimed. The appellant will pay the respondent's costs of the appeal fixed in the sum of $19,848.63 within 28 days.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge.