Kaba & Zemin - [2024] FedCFamC1A 114

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Kaba & Zemin [2024] FedCFamC1A 114

Appeal from: Zemin & Kaba (No 2) [2024] FedCFamC1F 377

Appeal number: NAA 139 of 2024

File number: PAC 571 of 2020

Judgment of: AUSTIN J

Date of judgment: 11 July 2024

Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks multiple forms of interlocutory relief – Where the appellant seeks an order that the Court procure the trial transcript at its expense – Where the appellant failed to persuade he should be relieved of the burden falling upon him to procure the transcript at his own expense – Where the appellant seeks to vacate the date of hearing of the appeal – Where the appellant has adequate time to prepare for the appeal hearing – Where the appellant’s application to join third parties to the appeal is misguided – Where the appellant seeks to extend an order made at first instance under s 102NA of the Family Law Act 1975 (Cth) (“s 102NA order”) – Where there will be no cross-examination in the appeal and no s 102NA order is necessary – Where the appellant seeks to stay the financial orders made by the primary judge pending disposition of the appeal – Where the appellant has not yet made any stay application to the primary judge as required by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where orders for disclosure cannot be made in the appellate jurisdiction – Where orders suspending child support obligations cannot be made in the appellate jurisdiction – Application dismissed – Oral applications for costs by the respondent and the Independent Children’s Lawyer dismissed.

Legislation:
Family Law Act 1975 (Cth) Pts VII, VIII, s 102NA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.12, 13.14, 13.19

Cases cited:
Bligh & Trott [2023] FedCFamC1A 95

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32

OP & TP & Anor (2002) 30 Fam LR 281; [2002] FamCA 1155

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Number of paragraphs: 40

Date of hearing: 11 July 2024

Place: Newcastle (via Microsoft Teams)

The Appellant: Litigant in person

Counsel for the Respondent: Mr Heazlewood

Solicitor for the Respondent: Sui Juris Lawyers

Solicitor for the Independent Children's Lawyer: Sarah Bevan Family Lawyers

ORDERS

NAA 139 of 2024
PAC 571 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR KABA

Appellant

AND:
MS ZEMIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

11 JULY 2024

THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 8 July 2024 is dismissed.
2.The respondent’s oral application against the appellant for party/party costs of and incidental to the application is dismissed.
3.The Independent Children’s Lawyer’s oral application against the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kaba & Zemin

Details

AGLC: Kaba & Zemin [2024] FedCFamC1A 114
Case: [2024] FedCFamC1A 114
Decision Date: 11 July 2024

CaseChat Overview and Summary

The appellant, Mr Kaba, filed an application in an appeal against the respondent, Ms Zemin, seeking various forms of interlocutory relief in relation to an appeal concerning family law matters. The application was dismissed by Austin J in the Federal Circuit and Family Court of Australia's appellate jurisdiction. The appellant sought the court to procure the trial transcript at its expense, a request that was firmly denied as there was no convincing reason to relieve him of the responsibility to procure the transcript himself. Additionally, the appellant sought to vacate the date of the hearing of the appeal, despite having adequate time to prepare for the appeal hearing, and this application was also dismissed. The appellant's request to join third parties to the appeal was deemed misguided, as it did not align with the procedural rules and the nature of the appeal.

The court further addressed the appellant's request to extend an order made at first instance under s 102NA of the Family Law Act 1975 (Cth). The court found there would be no cross-examination in the appeal, making the s 102NA order unnecessary. The appellant also sought to stay the financial orders made by the primary judge pending the disposition of the appeal, a request that was denied because the appellant had not made any stay application to the primary judge as required by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Moreover, the court ruled that orders for disclosure and suspension of child support obligations could not be made in the appellate jurisdiction. Consequently, the application in an appeal was dismissed in its entirety. The court also dismissed the oral applications for costs by the respondent and the Independent Children's Lawyer.

Orders

Orders of the court

NAA 139 of 2024

PAC 571 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR KABA

Appellant

AND:

MS ZEMIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

11 JULY 2024

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 8 July 2024 is dismissed.

2. The respondent’s oral application against the appellant for party/party costs of and incidental to the application is dismissed.

3. The Independent Children’s Lawyer’s oral application against the appellant for party/party costs of and incidental to the application is dismissed.

NOTATION

A. Neither the respondent nor the Independent Children’s Lawyer require the publication of any reasons for Orders 2 and 3 hereof.

Note: The form of the order is subject to the entry in the Court’s records.

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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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NAA 139 of 2024 PAC 571 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR KABA Appellant
AND:	MS ZEMIN Respondent
INDEPENDENT CHILDREN'S LAWYER

Appeal from:		Zemin & Kaba (No 2) [2024] FedCFamC1F 377
Appeal number:		NAA 139 of 2024
File number:	PAC 571 of 2020
Judgment of:	AUSTIN J
Date of judgment:	11 July 2024
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks multiple forms of interlocutory relief – Where the appellant seeks an order that the Court procure the trial transcript at its expense – Where the appellant failed to persuade he should be relieved of the burden falling upon him to procure the transcript at his own expense – Where the appellant seeks to vacate the date of hearing of the appeal – Where the appellant has adequate time to prepare for the appeal hearing – Where the appellant’s application to join third parties to the appeal is misguided – Where the appellant seeks to extend an order made at first instance under s 102NA of the Family Law Act 1975 (Cth) (“s 102NA order”) – Where there will be no cross-examination in the appeal and no s 102NA order is necessary – Where the appellant seeks to stay the financial orders made by the primary judge pending disposition of the appeal – Where the appellant has not yet made any stay application to the primary judge as required by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where orders for disclosure cannot be made in the appellate jurisdiction – Where orders suspending child support obligations cannot be made in the appellate jurisdiction – Application dismissed – Oral applications for costs by the respondent and the Independent Children’s Lawyer dismissed.
Legislation:	Family Law Act 1975 (Cth) Pts VII, VIII, s 102NA Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.12, 13.14, 13.19
Cases cited:	Bligh & Trott [2023] FedCFamC1A 95 GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32 OP & TP & Anor (2002) 30 Fam LR 281; [2002] FamCA 1155 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Number of paragraphs:	40
Date of hearing:	11 July 2024
Place:	Newcastle (via Microsoft Teams)
The Appellant:	Litigant in person
Counsel for the Respondent:	Mr Heazlewood
Solicitor for the Respondent:	Sui Juris Lawyers
Solicitor for the Independent Children's Lawyer:	Sarah Bevan Family Lawyers

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	11 JULY 2024