Simek & Jarros [2025] FedCFamC1A 139 (4 August 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 the pseudonym Simek & Jarros has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons explain why an application for leave to appeal should be summarily dismissed.

1. In March 2022, the applicant filed an application seeking de facto financial relief against the respondent under Pt VIIIAB of the Family Law Act 1975 (Cth) ("the Act"), which claim the respondent resisted.
2. As the litigation progressed, numerous procedural orders were made in November 2022, February 2023, May 2023, September 2023, and October 2023 requiring the applicant to file and serve affidavit evidence in support of her claim for de facto financial relief, which orders she flouted. By November 2023, the primary judge ordered the applicant to file and serve supporting affidavit evidence by January 2024, in default of which the summary dismissal of her claim for relief would be considered at a hearing on 8 February 2024.
3. Just days before the hearing on 8 February 2024, the applicant sent emails to the primary judge's chambers foreshadowing that she may not be present at Court but, absent the provision of reliable evidence to explain her absence, his Honour's staff informed the applicant of the expectation of her presence. She did not appear. Nor had she complied with the procedural order requiring her to file and serve the evidence in support of her claim.
4. Accordingly, the primary judge dismissed the pending application (Order 1), which dismissal order was made pursuant to the power reposing in r 10.26 and r 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") (Pappa & Raptis [2024] FedCFamC1F 128 at [10] and [22]). Costs were also ordered (Order 2), pursuant to the provisions of s 117 of the Act (at [23]-[30]).
5. When explaining the applicant's failure to appear at the hearing, the primary judge said this in the reasons for judgment:
   1. It might be the case that the applicant is overseas. Certainly she has been invited on a number of occasions by my associate to say that, and she has not. The emails that she has sent to my chambers are, at best, ambiguous and at worst, misleading. In those circumstances, I do not perceive that there is any injustice to the applicant by proceeding with the application today in her absence. She has notice of it. She knows of her requirement to appear in person and there is really no adequate and satisfactory explanation for her failure to appear.

1. His Honour was content to proceed and summarily dismiss the financial proceedings knowing the applicant could re-open the proceedings under r 10.13(1)(a) of the Rules, provided she could give an adequate explanation for her failure to appear and demonstrate that different orders might then be made if given the chance to participate (at [19]-[20]).
2. About six weeks later, on 21 March 2024, the applicant sent an email to the primary judge's chambers, annexing an Application in a Proceeding and supporting affidavit, apparently expecting his Honour's staff would then file the annexed documents for her. Her application was to set aside the two orders made on 8 February 2024, invoking r 10.13(1)(a) of the Rules. Nothing happened because it was not the responsibility of the primary judge's staff to conduct the applicant's case by filing documents for her.
3. After waiting for another year, on 28 March 2025, the applicant sent a follow-up email to the primary judge's chambers enquiring about progress with the litigation. His Honour's staff, by then alerted to how the applicant misunderstood her responsibility to file her own documents, referred the email to administrative staff within the Court and, on 3 April 2025, the applicant's application and supporting affidavit were finally filed on the Court's electronic portal.
4. The respondent filed a Response and supporting affidavit on 22 May 2025, seeking dismissal of the application with costs.
5. The application was listed for hearing on 27 May 2025 and was dismissed (Order 1) with costs (Order 2) on account of the applicant's unexplained failure to appear under r 10.27(1)(a) of the Rules.
6. By a Notice of Appeal filed on 24 June 2025, the applicant sought leave to appeal from the two orders made on 27 May 2025, asserting she was never informed her application was listed for hearing that day.
7. She said this in the Notice of Appeal:
   1. Despite the application being formally accepted and appearing on my Commonwealth Courts Portal record, I received no notice from the court or any party that a hearing was listed on 27 May 2025.

(Part C of the applicant's Notice of Appeal) (Emphasis added)

1. All five grounds of her intended appeal are directed to the solitary point of her deprivation of procedural fairness by not being informed of the hearing date, pleading this:
   1. The Court erred by dismissing the Application in a Proceeding filed on 3 April 2025 in my absence, without providing proper or any notice that the matter was listed for hearing on 27 May 2025.
   2. The Court failed to afford me procedural fairness by making final orders (including an adverse costs order) without notifying me of the hearing or giving me an opportunity to be heard.
   3. The Court failed to consider that my application was accompanied by medical evidence substantiating my ongoing incapacity, including reports from both a general practitioner and a specialist psychiatrist.
   4. The Court failed to respond to, or consider, my written communications to the Court and the respondent's solicitor (dated 19 and 27 March 2025) requesting clarification on the status of my application.
   5. The dismissal and costs orders imposed a substantial injustice, particularly given the Court's knowledge of my vulnerable state and the absence of legal representation at the time.
2. The application for leave to appeal was then listed on 4 August 2025 to invite submissions from the parties as to the summary disposition of the application for leave to appeal (and if necessary, the appeal), following resolution of the anterior factual issue of whether the applicant was informed of the hearing on 27 May 2025.

1. With the applicant's consent, the respondent tendered two documents to prove the applicant's imputed knowledge of the hearing date, being:

(a) an email sent by the respondent's solicitor to the applicant on 23 May 2025, attaching a cover letter, the Response, and the supporting affidavit (Exhibit R1); and

(b) an email sent in reply by the applicant to the respondent's solicitor on 23 May 2025 refusing to withdraw her application (Exhibit R2).

1. The applicant admitted receiving the respondent's email and sending the reply.
2. The Response was endorsed with the hearing date of her application - 27 May 2025 - but the applicant said she did not read it. That may be so, but her actual unawareness of the hearing date is not enough for her to succeed. Being properly served with the Response via correspondence sent to the electronic address for service she disclosed in her Application, she was constructively aware of the hearing date. It is untrue for her to contend she received no notice of the hearing date from the respondent.
3. True enough, the Application (which was filed for her by Court staff on the Court portal) was not endorsed with any return date and she was not independently informed of the date upon which her application was listed by any correspondence sent by the Court. However, being the applicant who was moving the Court for relief, she could easily have learned of the hearing date by checking the upcoming Court events within the cause on the portal. When confronted with that proposition, the applicant conceded she could have done so but professed she was unfamiliar with the electronic Court process at the time, which is an unpersuasive answer. The applicant must take some responsibility for the prosecution of her own application.
4. The applicant was unable to discharge the burden of demonstrating the application for leave to appeal stands any reasonable prospect of success (ss 32(3)(b), 32(5) and 46(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)), in which event the Notice of Appeal filed on 24 June 2025 is summarily dismissed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.