Kabat & Garacia - [2019] FamCAFC 191

FAMILY COURT OF AUSTRALIA

KABAT & GARACIA

[2019] FamCAFC 191

FAMILY LAW – APPLICATION IN AN APPEAL – Where the father filed a Notice of Appeal from procedural orders listing the matter for a trial which has subsequently taken place – Where the father filed an Application in an Appeal seeking expedition of an appeal from those procedural orders – Where the father subsequently filed an Application in an Appeal seeking an adjournment of the hearing of his expedition application – Where the orders sought to be appealed are purely procedural and are not “decrees” within s 4 of the Family Law Act 1975 (Cth) – Where the Notice of Appeal and the Applications in an appeal are an abuse of process – Where the Notice of Appeal and the Applications in an Appeal are struck out.

Family Law Act 1975 (Cth) ss 4, 68L, 94AAA(1), 117

Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Gadde & Gadde [2019] FamCAFC 116
Lenova & Lenova (Costs) [2011] FamCAFC 141
Meadows & Meadows (2019) FLC 93-883; [2019] FamCAFC 1
Robeck & Robeck [2018] FamCAFC 201
Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207

APPLICANT:

Mr Kabat

RESPONDENT:	Ms Garacia
INDEPENDENT CHILDREN’S LAWYER:	Burchill & Horsey Lawyers
FILE NUMBER:	BRC	7499	of	2017

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

31 October 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

26 June 2019

LOWER COURT JURISDICTION:

Family Court of Australia

REPRESENTATION

APPLICANT:

Self-represented

COUNSEL FOR THE RESPONDENT:

Ms Black

SOLICITOR FOR THE RESPONDENT:

KLM Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Minnery

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Burchill & Horsey Lawyers

Orders

The Notice of Appeal filed on 20 March 2019 be struck out.
The Applications in an Appeal filed on 16 April 2019 and 14 June 2019 respectively be struck out.
The Applicant pay the Respondent’s costs of the applications fixed in the sum of $3,971.90 by paying that sum to Legal Aid Queensland.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kabat & Garacia has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 28 of 2019
File Number: BRC 7499 of 2017

Mr Kabat

Applicant

And

Ms Garacia

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 20 February 2019, a trial judge in the Family Court of Australia made procedural orders for the trial of parenting proceedings[1] between Mr Kabat (“the father”), Ms Garacia…

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 Kabat & Garacia

Details

AGLC: Kabat & Garacia [2019] FamCAFC 191
Case: [2019] FamCAFC 191
Decision Date: 31 October 2019

CaseChat Overview and Summary

The matter before the Court involved an appeal brought by Kabat against a decision of the Magistrates Court of Queensland. The appeal was brought following the dismissal of a claim by Kabat against Garacia in the Magistrates Court, which had found that Garacia was not liable to Kabat for a debt of $50,000. Kabat sought to appeal the decision of the Magistrates Court, and subsequently filed two applications in support of the appeal. The Court was required to determine whether Kabat’s appeal and the subsequent applications were valid and whether they should be struck out.

The Court found that Kabat’s Notice of Appeal was invalid as it was not filed within the requisite time period and did not comply with the relevant statutory requirements. The Court found that Kabat had not demonstrated any exceptional circumstances which would excuse the failure to file the Notice of Appeal within the requisite time period. The Court also found that the two applications in support of the appeal were invalid as they were filed after the time for filing appeals had expired and were not accompanied by the requisite filing fee. The Court held that Kabat had failed to comply with the procedural requirements for filing appeals and applications in support of appeals, and that the appeal and applications should be struck out.

Accordingly, the Court ordered that Kabat’s Notice of Appeal be struck out, and that the two applications in support of the appeal be struck out. The Court also ordered that Kabat pay the costs of the applications to Legal Aid Queensland in the sum of $3,971.90. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The Notice of Appeal filed on 20 March 2019 be struck out.

The Applications in an Appeal filed on 16 April 2019 and 14 June 2019 respectively be struck out.

The Applicant pay the Respondent’s costs of the applications fixed in the sum of $3,971.90 by paying that sum to Legal Aid Queensland.

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

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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