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 of 2015

APPEAL NUMBER: SOA 36 of 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

1. 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.

2. 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.

3. 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

1. 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 to that date in a moment because there is an issue about it, and it is relevant to these proceedings.

2. Also before the court is a draft Notice of appeal filed on 31 May 2017 which has been received on the basis that it is treated as an application in an appeal to review decisions made by the Appeal Registrar.

3. Mr Kappas (“the applicant”) appears in person today. Ms Kappas (“the respondent”) has appeared represented by counsel.

4. I mention now the issue in relation to the date of the orders. To repeat, before the court is an application for an extension of time. However, the applicant has submitted that he does not need an extension of time because the operative orders are the amended orders dated 12 April 2017 rather than the orders originally made on 24 March 2017. His argument in a nutshell is the final orders can only be the amended orders, namely those promulgated on 12 April 2017.

5. That submission feeds into the issue as to whether there is an adequate explanation for the prima facie failure to file a Notice of Appeal within the time provided in the Family Law Rules 2004 (Cth), namely 28 days.

6. The applicant says that if his argument is correct, then when he presented a Notice of Appeal to the court on 27 April 2017, that was within time. Clearly that would be correct. Equally, as the applicant has put to me, if his argument is not accepted, and the operative orders are those delivered on 24 March 2017, then he was only three days out of time.

7. In my view, and without making any decision, because it is unnecessary for the purpose of these proceedings, whether the operative orders are 12 April 2017 or 24 March 2017, the applicant has provided an adequate explanation for his failure to file a Notice of Appeal within the 28 day time period following 24 March 2017, if in fact that is the date the orders operate from.

8. The authorities tell this court that apart from the question of whether there is an adequate explanation for a failure to file a Notice of Appeal within time, the other important factors to consider are the merits of the appeal, and the question of hardship or prejudice to the parties, depending on whether the application for an extension of time succeeds or not.

9. In relation to the merits of the appeal, as I have pointed out to the applicant, he has a significant difficulty, namely the draft Notice of Appeal upon which he relies, and which would be his Notice of Appeal if time was extended, unfortunately is incompetent in that it does not contain grounds of appeal, identifying appealable errors by the trial judge.

10. The applicant has not had any legal advice or legal representation in relation to the preparation of that document, and I obviously take that into account. What the applicant has done though, is instead of setting out grounds of appeal, he has annexed to his draft Notice of Appeal, two narratives setting out his complaints both generally in relation to the matter, and specifically in relation to various of the reasons provided by the trial judge. The difficulty is that even within those narratives it is impossible to identify appealable errors by the trial judge. Thus, if the application before me today was successful in terms of extending the time, the difficulty the applicant has, is that his Notice of Appeal would immediately then be dismissed as being incompetent, and having no reasonable chance of success (s 96AA of the Family Law Act 1975 (Cth)).

11. Given that, I raised with the applicant whether he wanted to seek an adjournment to prepare, if possible, a competent draft Notice of Appeal in support of his application for an extension of time. As a result of that he has requested an adjournment.

12. The adjournment application is opposed by the respondent, but I am prepared to give the applicant one chance to prepare and provide to the court a draft Notice of Appeal which contains competent grounds of appeal, and I am prepared to allow the applicant eight weeks to attend to that.

13. In those circumstances the respondent makes an application for costs thrown away today, and the amount sought is in the sum of $3,000 which I am told by Mr Marchetti, counsel for the wife, is within scale, and which I accept.

14. Clearly there are circumstances here which justify an order for costs. The respondent came today with counsel intending to address and deal with the application, and on the basis of opposing the application for the very reasons I have identified, namely it is not apparent from the draft Notice of Appeal that the appeal has any reasonable chance of success if it is allowed to proceed.

15. Thus, I propose to make the order sought.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 13 September 2017.

Associate: 

Date: