Kettle and Baker - [2011] FamCAFC 171

FAMILY COURT OF AUSTRALIA

KETTLE & BAKER

[2011] FamCAFC 171

FAMILY LAW – APPEAL – Application for adjournment – Adjournment granted.

Family Law Act 1975 (Cth)

APPELLANT:

Mr Kettle

RESPONDENT:

Ms Baker

INDEPENDENT CHILDREN’S LAWYER:

Berck & Associates

FILE NUMBER:

BRC

6532

2009

APPEAL NUMBER:

2011

DATE DELIVERED:

10 August 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Coleman, May & Strickland JJ

HEARING DATE:

10 August 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

8 December 2010

LOWER COURT MNC:

[2010] FamCA 1164

REPRESENTATION

REPRESENTATION FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE RESPONDENT:

Burchill & Horsey

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Berck & Associates

Orders

That the Notice of Appeal filed 18 January 2011 be adjourned to a date to be fixed.
Note the undertaking given to the Court by [Mr B] that:
“I will not, by any means communicate, publish or disseminate to, or discuss with or otherwise reveal to any person or entity the content of audio recordings of proceedings in the Family Court of Australia before Murphy J on 2 November 2010, 8 December 2010 and 9 May 2011 or anything said therein other than to [Mr Kettle].”
That to the extent necessary, the appellant and [Mr B] have leave to listen to audio recordings of the proceedings before Murphy J on 2 November 2010, 8 December 2010 and 9 May 2011.
That within 42 days of this date the appellant file and serve a document identifying the portions of the transcript of proceedings before Murphy J on 2 November 2010, 8 December 2010 and 9 May 2011 upon which the appellant relies by reference to the date and times of the proceedings on those dates.

IT IS NOTED that publication of this judgment under the pseudonym Kettle & Baker is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 3 of 2011
File Number: BRC 6532 of 2009

MR KETTLE

Appellant

And

MS BAKER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE

REASONS FOR JUDGMENT

Coleman J

For my part, my reasons for adopting the course the Court has indicated are essentially that the other parties to the proceedings which give rise to the appeal have, as is their right, elected not to participate in the appeal, and that as such the application of Mr Kettle (“the appellant”) for an adjournment can be seen as largely unopposed.
Further, given that although the appellant appears to be arguing the matter somewhat differently before this Court than he did before Murphy J, which within limits he is entitled to, it would be potentially relevant to the appeal, as the appellant has earlier this morning indicated, to know what was said on each of the three occasions identified in paragraph 2 of the appellant’s application which are…

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 Kettle and Baker

Details

AGLC: Kettle and Baker [2011] FamCAFC 171
Case: [2011] FamCAFC 171
Decision Date: 10 August 2011

CaseChat Overview and Summary

The case of Kettle and Baker involved a dispute concerning a Notice of Appeal filed by the appellant, Mr Kettle, on 18 January 2011. The matter was heard in the Family Court of Australia. The primary issue before the court was whether the appellant's appeal should be adjourned to a later date. Additionally, the court needed to consider the undertaking given by Mr Baker, who was not a party to the appeal, regarding the confidentiality of audio recordings of previous proceedings. Specifically, the court was tasked with deciding if Mr Baker should be allowed to listen to the recordings and if the appellant should be required to identify specific parts of the transcript of the previous proceedings upon which he relied.

The court deliberated on the necessity of adjourning the Notice of Appeal to allow for proper consideration of the matter. It also assessed the implications of Mr Baker's undertaking to ensure that the confidentiality of the audio recordings was maintained, while balancing the need for relevant parties to access the recordings for the appeal. The court concluded that the appeal should be adjourned to a date to be fixed, and it accepted the undertaking given by Mr Baker to not disclose the content of the recordings. Furthermore, the court granted leave for the appellant and Mr Baker to listen to the recordings as necessary and required the appellant to identify specific portions of the transcript within 42 days of the court's decision.

The court's decision provided for the adjournment of the Notice of Appeal, accepted the confidentiality undertaking from Mr Baker, and allowed both the appellant and Mr Baker to access the audio recordings. The court also mandated that the appellant identify specific parts of the transcript within a specified timeframe. This decision ensured that the confidentiality of the proceedings was preserved while allowing the appeal to proceed with the necessary information.

Orders

Orders of the court

That the Notice of Appeal filed 18 January 2011 be adjourned to a date to be fixed.

Note the undertaking given to the Court by [Mr B] that:

“I will not, by any means communicate, publish or disseminate to, or discuss with or otherwise reveal to any person or entity the content of audio recordings of proceedings in the Family Court of Australia before Murphy J on 2 November 2010, 8 December 2010 and 9 May 2011 or anything said therein other than to [Mr Kettle].”

That to the extent necessary, the appellant and [Mr B] have leave to listen to audio recordings of the proceedings before Murphy J on 2 November 2010, 8 December 2010 and 9 May 2011.

That within 42 days of this date the appellant file and serve a document identifying the portions of the transcript of proceedings before Murphy J on 2 November 2010, 8 December 2010 and 9 May 2011 upon which the appellant relies by reference to the date and times of the proceedings on those dates.

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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