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 | of | 2015 |
| APPEAL NUMBER: | SOA | 36 | of | 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…
Continue reading Kappas and Kappas (No 2)
Sign in free to access the full text
- AGLC
- Kappas and Kappas (No 2) [2017] FamCAFC 241
- Case
- [2017] FamCAFC 241
- Decision Date
CaseChat Overview and Summary
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
1.
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.
2.
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.
3.
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.
4.
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.
5.
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.
6.
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.
7.
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.
8.
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.
9.
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.