KAPPAS & KAPPA - [2017] FamCAFC 189

FAMILY COURT OF AUSTRALIA

KAPPAS & KAPPA

[2017] FamCAFC 189

FAMILY LAW – APPEAL – EXTENSION OF TIME – Where the applicant’s draft Notice of Appeal does not disclose competent grounds of appeal identifying appealable errors by the trial judge – Where the applicant seeks an adjournment to file an amended draft Notice of Appeal containing competent grounds of appeal – Application adjourned.

FAMILY LAW – APPEAL – COSTS – Where the respondent seeks her costs of today thrown away – Where there are circumstances which justify such an order – Costs ordered in favour of the respondent.

Family Law Act 1975 (Cth) s 96AA

Family Law Rules 2004 (Cth)

APPELLANT:

Mr Kappas

RESPONDENT:

Ms Kappa

FILE NUMBER:

MLC

7430

2015

APPEAL NUMBER:

SOA

2017

DATE DELIVERED:

13 September 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

13 September 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

24 March 2017

LOWER COURT MNC:

[2017] FCCA 577

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Marchetti

SOLICITOR FOR THE RESPONDENT:

Kennedy Guy

Orders

Further consideration of the application in an appeal filed on 31 May 2017 and the draft Notice of Appeal also filed on 31 May 2017 be adjourned to 10:00am on Friday 10 November 2017.
The applicant husband pay the costs of the respondent wife thrown away today fixed in the sum of $3,000, such costs to be paid on or before the close of business on Friday 3 November 2017.
The applicant husband file and serve any amended draft Notice of Appeal by the close of business on Wednesday 8 November 2017.

IT IS NOTED THAT:

As currently advised the hearing on Friday 10 November 2017 will take place by telephone link with the parties to provide their respective telephone numbers to the Southern Appeal Registrar by no later than the close of business on Wednesday 8 November 2017.

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 KappaS & Kappas 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 36 of 2017
File Number: MLC 7430 of 2015

Mr Kappas

Appellant

And

Ms Kappa

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is an application in an appeal filed on 31 May 2017 seeking an extension of time to file an appeal against orders made by Judge Harland on 24 March 2017. I will come back…

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 & KAPPA

Details

AGLC: KAPPAS & KAPPA [2017] FamCAFC 189
Case: [2017] FamCAFC 189
Decision Date: 13 September 2017

CaseChat Overview and Summary

The case involved a husband, the applicant, who had filed an appeal against a decision of the Family Court. The respondent, the wife, had applied for an extension of time to file an amended draft Notice of Appeal that contained competent grounds of appeal. The wife also sought her costs of the hearing to be paid by the husband. The matter was heard in the Family Court of Australia.

The court was required to decide whether to grant the husband's application for an adjournment to file an amended draft Notice of Appeal that contained competent grounds of appeal. The court was also required to decide whether to order the husband to pay the wife's costs of the hearing. The court found that the husband's draft Notice of Appeal did not disclose competent grounds of appeal identifying appealable errors by the trial judge. However, the court found that there were circumstances which justified granting the husband an adjournment to file an amended draft Notice of Appeal. The court also found that the wife's costs of the hearing should be paid by the husband.

The court adjourned the further consideration of the application in the appeal to allow the husband to file an amended draft Notice of Appeal by a specified date. The court also ordered the husband to pay the wife's costs of the hearing in the sum of $3,000. The court made an order that the husband file and serve any amended draft Notice of Appeal by a specified date.

The court ordered that the husband pay the wife's costs of the hearing, which were fixed in the sum of $3,000, to be paid on or before the close of business on a specified date. The court also ordered that the husband file and serve any amended draft Notice of Appeal by the close of business on a specified date.

Orders

Orders of the court

Further consideration of the application in an appeal filed on 31 May 2017 and the draft Notice of Appeal also filed on 31 May 2017 be adjourned to 10:00am on Friday 10 November 2017.

The applicant husband pay the costs of the respondent wife thrown away today fixed in the sum of $3,000, such costs to be paid on or before the close of business on Friday 3 November 2017.

The applicant husband file and serve any amended draft Notice of Appeal by the close of business on Wednesday 8 November 2017.

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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