Kappas and Kappas (No 2) - [2017] FamCAFC 241

FAMILY COURT OF AUSTRALIA

KAPPAS & KAPPAS (NO. 2)

[2017] FamCAFC 241

FAMILY LAW – APPEAL – EXTENSION OF TIME – Where there is an adequate explanation for the failure to file a Notice of Appeal within time – Where although there are difficulties with the Draft Notice of Appeal recognisable grounds of appeal can be discerned – Where the extension of time as sought should be granted – Time to file extended.

FAMILY LAW – APPEAL – REVIEW REGISTRAR’S DECISION – Where the Appeal Registrar was correct in refusing to receive for filing documents presented by the appellant one of which was prima facie out of time and two others which were inadequate – Where there is no utility in further considering the complaints the appellant makes given that the time to file an appeal has been extended – Application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPELLANT:

Mr Kappas

RESPONDENT:

Ms Kappas

FILE NUMBER:

MLC

7430

2015

APPEAL NUMBER:

SOA

2017

DATE DELIVERED:

10 November 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

10 November 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

24 March 2017

LOWER COURT MNC:

[2017] FCCA 577

REPRESENTATION

THE APPELLANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Marchetti

SOLICITOR FOR THE RESPONDENT:

Kennedy Guy

Orders

The time for the appellant husband to file and serve a Notice of Appeal be extended to the close of business on Friday 24 November 2017.
The Notice of Appeal, accepted as an application in an appeal to review decisions made by the Appeal Registrar, and filed on 31 May 2017, be dismissed.
On or before the close of business on Friday 24 November 2017 the appellant husband file and serve a draft appeal index containing a list of the documents to be before the Court for the purposes of the appeal and comprising the documents which were before the trial judge.
On or before the close of business on Friday 1 December 2017 the respondent wife file and serve an amended draft appeal index in the event that there are further documents the respondent wife suggests should be before the Court for the purposes of the appeal.
On or before the close of business on Monday 18 December 2017 the appellant husband obtain the transcript of the hearing before the trial judge and provide copies of that transcript to the Court and to the respondent wife.
On or before the close of business on Monday 18 December 2017 the appellant husband file and serve a written summary of argument and list of authorities, if any.
On or before the close of business on Monday 18 December 2017 the appellant husband file and serve an application in an appeal seeking to lead further evidence and an affidavit containing that evidence.
On or before the close of business on Monday 22 January 2018 the respondent wife file and serve a written summary…

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) [2017] FamCAFC 241
Case: [2017] FamCAFC 241
Decision Date: 10 November 2017

CaseChat Overview and Summary

In the matter of Kappas and Kappas (No 2), the appellant, the husband, sought an extension of time to file his Notice of Appeal and a review of the Registrar's decision to reject certain documents related to the appeal. The husband's original deadline to file a Notice of Appeal had passed, but he argued that there was a valid reason for the delay and that the Draft Notice of Appeal contained recognisable grounds of appeal despite some difficulties. The wife opposed the extension of time and the review of the Registrar's decision.

The court had to determine whether the husband's explanation for the late filing of the Notice of Appeal was adequate to warrant an extension and whether the Draft Notice of Appeal contained recognisable grounds of appeal. Additionally, the court had to decide whether the Appeal Registrar was correct in rejecting the husband's documents, one of which was prima facie out of time and two others of which were inadequate.

The court found that the husband's explanation for the delay in filing the Notice of Appeal was adequate and granted the extension of time. The court also found that the Draft Notice of Appeal contained recognisable grounds of appeal, despite some difficulties. The court dismissed the husband's application to review the Registrar's decision, as the extension of time had already been granted and there was no utility in further considering the complaints the husband made. The court ordered the husband to file and serve a Notice of Appeal by a specified date and set out a timetable for the filing of further documents and the hearing of the appeal.

The court's final orders included an extension of time for the husband to file and serve a Notice of Appeal, dismissal of the husband's application to review the Registrar's decision, and a timetable for the filing of further documents and the hearing of the appeal. The costs of the proceedings were reserved.

Orders

Orders of the court

The time for the appellant husband to file and serve a Notice of Appeal be extended to the close of business on Friday 24 November 2017.

The Notice of Appeal, accepted as an application in an appeal to review decisions made by the Appeal Registrar, and filed on 31 May 2017, be dismissed.

On or before the close of business on Friday 24 November 2017 the appellant husband file and serve a draft appeal index containing a list of the documents to be before the Court for the purposes of the appeal and comprising the documents which were before the trial judge.

On or before the close of business on Friday 1 December 2017 the respondent wife file and serve an amended draft appeal index in the event that there are further documents the respondent wife suggests should be before the Court for the purposes of the appeal.

On or before the close of business on Monday 18 December 2017 the appellant husband obtain the transcript of the hearing before the trial judge and provide copies of that transcript to the Court and to the respondent wife.

On or before the close of business on Monday 18 December 2017 the appellant husband file and serve a written summary of argument and list of authorities, if any.

On or before the close of business on Monday 18 December 2017 the appellant husband file and serve an application in an appeal seeking to lead further evidence and an affidavit containing that evidence.

On or before the close of business on Monday 22 January 2018 the respondent wife file and serve a written summary of argument and list of authorities, if any.

On or before the close of business on Monday 22 January 2018 the respondent wife file and serve any response to the application to lead further evidence together with any affidavit in support thereof.

10.

The appeal be listed for hearing before the Honourable Justice Strickland in Melbourne commencing at 10:00am on Wednesday 31 January 2018 with a time estimate of half a day.

11.

The costs of today be reserved.

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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