KEDIS & KEDIS - [2014] FamCAFC 119

FAMILY COURT OF AUSTRALIA

KEDIS & KEDIS

[2014] FamCAFC 119

FAMILY LAW – APPEAL – NOTICE OF APPEAL – where the appellant seeks a further adjournment to file an amended Notice of Appeal containing proper grounds of appeal – where the adjournment is opposed – where the ground of appeal set out in the Notice of Appeal does not raise any appealable error of fact or law by the trial judge – where the oral application of the appellant for a further adjournment is dismissed – where the appeal is groundless – appeal struck out.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the respondent seeks costs for the work involved in responding to the appeal and for the appearance of counsel and solicitor today – where the appellant opposes any order for costs – wife’s costs to be paid by the husband as agreed or in default of agreement as assessed.

Family Law Act 1975 (Cth)

APPELLANT:

Mr Kedis

RESPONDENT:

Ms Kedis

FILE NUMBER:

MLC

2787

2013

APPEAL NUMBER:

SOA

2014

DATE DELIVERED:

7 July 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

7 July 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

29 November 2013

LOWER COURT MNC:

[2013] FCCA 1959

REPRESENTATION

THE APPELLANT:	In Person
COUNSEL FOR THE RESPONDENT:	Ms Teicher
SOLICITOR FOR THE RESPONDENT:	Jeanne Gorman

Orders

The oral application for an adjournment made by the husband today be dismissed.
The Notice of Appeal filed by the husband on 23 December 2013 be struck out.
The husband pay to the wife her costs of and incidental to the Notice of Appeal filed on 23 December 2013 SAVE AND EXCEPT in relation to the appearance of the wife’s counsel and solicitor on 8 May 2014 and in respect of which an order for costs was made on that day, such costs to be as agreed and in default of agreement as assessed on a party/party basis.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kedis & Kedis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

Appeal Number: SOA 1 of 2014
File Number: MLC 2787 of 2013

Mr Kedis

Appellant

And

Ms Kedis

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is an appeal filed by Mr Kedis (“the husband”) on 23 December 2013 against orders made by Judge Hartnett on 29 November 2013. A draft appeal index was filed, as is required under the Family Law Rules 2004 (Cth) (“the Rules”), on 20 January 2014.
The appeal is opposed by Ms Kedis (“the wife”).
The matter first came before this court on 26 March 2014 on a directions hearing. No-one appeared at that hearing; neither the husband, nor the wife, nor any legal representatives for either party. There was a suggestion…

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.

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Details

AGLC: KEDIS & KEDIS [2014] FamCAFC 119
Case: [2014] FamCAFC 119
Decision Date

CaseChat Overview and Summary

Mr Kedis, the appellant, filed an appeal against the orders made by Judge Hartnett on 29 November 2013, which the appellant believed to be erroneous. The respondent, Ms Kedis, opposed the appeal. The appeal was initially scheduled for a directions hearing on 26 March 2014, but no one appeared on behalf of either party. The hearing was subsequently adjourned to 8 May 2014, with the husband still in prison and scheduled to attend a sentencing hearing the next day. Mr King, representing the husband, requested an adjournment to allow the husband to receive legal advice and determine whether to proceed with the appeal. The court granted the adjournment and ordered costs, with the condition that if no amended Notice of Appeal was filed by 19 June 2014, the appeal would be dismissed on the adjourned hearing date.

The court found that the sole ground of appeal presented in the Notice of Appeal was not a proper ground of appeal, as it did not raise any appealable error of fact or law by the trial judge. The ground of appeal stated that the husband proposed to appeal the orders based on evidence that was not presented during the trial and claimed that the wife committed perjury. However, this did not constitute a valid ground for appeal. Despite the husband's request for an adjournment to pursue this matter, the court dismissed the application for an adjournment and struck out the Notice of Appeal, as it was groundless and did not contain a proper ground of appeal.

The wife's counsel, Ms Teicher, applied for costs related to the work involved in responding to the appeal and the appearance of counsel and solicitor on 8 May 2014. The husband opposed any order for costs, expressing concern about the detail of the work for which costs were being sought. The court decided to leave the issue of costs to be agreed upon between the parties or, if not possible, to be assessed by an assessor. The wife's costs, except for the appearance of counsel and solicitor on 8 May 2014, were to be paid by the husband as agreed or, in default of agreement, assessed on a party/party basis. The court certified that the preceding twenty-three paragraphs are a true copy of the ex tempore reasons for judgment delivered on 7 July 2014.

Orders