There was a reminder of the myriad of rules surrounding appeals in the recent decision of Lynch & Lynch 2024.
In that matter the husband sought leave to appeal a first instance decision of a Division 1 judge of the Court dismissing his application to institute property settlement proceedings out of time (under section 44(3) of the Family Law Act 1975).
Section 26(2) of the Federal Circuit and Family Court of Australia Act 2021 provides that certain appeals are prohibited – and subsection (2)(a)(i) specifically provides that an appeal cannot be brought in relation to a first instance decision about whether a party has leave to institute proceedings in Division 1 of the Court (for example, under section 44(3) of the Family Law Act 1975).
The husband was unable to point to any reason why Section 26(2) of the Federal Circuit and Family Court of Australia Act 2021 didn’t apply to his appeal; the appeal was dismissed.
This decision also serves a reminder of the need to be cognisant of any limitation period; and consideration being given to seeking the consent of both parties to extend the limitation period – as there may be no recourse if the first instance judge of Division 1 finds against leave to institute proceedings.
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