Kappas and Kappas (No.2) - [2016] FCCA 1854

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAPPAS & KAPPAS (No.2)

[2016] FCCA 1854

Catchwords:
FAMILY LAW – Ongoing non-compliance by the husband with order for disclosure – conciliation conference aborted – costs.

Legislation:

Family Law Act 1975, s.177(2A)

Cases cited:

Black & Kellner (1992) FLC 92-287

Weir v Weir (1993) FLC 92-338

Applicant:

MS KAPPAS

Respondent:

MR KAPPAS

File Number:

MLC 7430 of 2015

Judgment of:

Judge Harland

Hearing date:

14 July 2016

Date of Last Submission:

14 July 2016

Delivered at:

Melbourne

Delivered on:

14 July 2016

REPRESENTATION

Counsel for the Applicant:

Mr Renwick

Solicitors for the Applicant:

Kennedy Guy

The Respondent:

In person

ORDERS

Within 21 days the husband file an affidavit setting out the efforts he has made to comply with Order 15 of the Orders made 19 April 2016 and produce each of the documents and annexing the documents he does have in his control and possession.
In that affidavit, the husband outline what efforts he has made to produce each of the documents sought and annex the documents he has in his possession.
If the husband fails to comply with Orders 1, then the hearing will procced on 7 September 2016 on an undefended basis.
The husband pay the wife’s costs fixed in the sum of $930.00, such costs to be payable within 21 days.

AND THE COURT NOTES THAT:

The Conciliation Conference could not be conducted today because of the husband’s failure to comply with Order 15 of the Orders made 19 April 2016.

IT IS NOTED that publication of this judgment under the pseudonym Kappas & Kappas (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7430 of 2015

MS KAPPAS

Applicant

And

MR KAPPAS

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
The conciliation conference could not be conducted today because of the husband’s failure to comply with orders 4 and 15 of the orders made on 19 April 2016 as well. I have explained to the husband his obligations with respect to disclosure and note that this is not the first time that this matter has been brought before me because of the husband’s noncompliance. In this regard, I refer to the orders and judgment I made on 15 February 2016.
It is significant to note the matter was listed for an undefended hearing on 19 April 2016 but then the husband attended and filed documents. The husband needs to appreciate – and if he is unsure he should get independent legal advice – that there are serious consequences when parties do not meet their obligations for full and frank disclosure, which is a positive obligation on each of the parties. The authorities of Black & Kellner (1992) FLC 92-287 and Weir v Weir (1993) FLC 92-338 make…

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 Kappas and Kappas (No.2)

Details

AGLC: Kappas and Kappas (No.2) [2016] FCCA 1854
Case: [2016] FCCA 1854
Decision Date: 14 July 2016

CaseChat Overview and Summary

In *Kappas and Kappas (No.2)*, heard by Judge Harland, the dispute concerned the husband's failure to comply with a previous court order, specifically Order 15 made on 19 April 2016. This non-compliance prevented a conciliation conference from proceeding.

The primary legal issue before the court was the extent of the husband's efforts to comply with Order 15 and to produce documents as previously directed. The court was required to determine whether the husband had made sufficient efforts and to assess what documents, if any, were within his control and possession.

Judge Harland ordered the husband to file an affidavit within 21 days detailing his efforts to comply with Order 15 and to annex any documents he possessed. The court stipulated that if the husband failed to comply with this new order, the hearing would proceed on an undefended basis on 7 September 2016. The husband was also ordered to pay the wife's costs fixed at $930.00 within 21 days.

Orders

Orders of the court

Within 21 days the husband file an affidavit setting out the efforts he has made to comply with Order 15 of the Orders made 19 April 2016 and produce each of the documents and annexing the documents he does have in his control and possession.

In that affidavit, the husband outline what efforts he has made to produce each of the documents sought and annex the documents he has in his possession.

If the husband fails to comply with Orders 1, then the hearing will procced on 7 September 2016 on an undefended basis.

The husband pay the wife’s costs fixed in the sum of $930.00, such costs to be payable within 21 days.

AND THE COURT NOTES THAT:

The Conciliation Conference could not be conducted today because of the husband’s failure to comply with Order 15 of the Orders made 19 April 2016.

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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