Kettle & Baker - [2014] FamCAFC 85

FAMILY COURT OF AUSTRALIA

KETTLE & BAKER

[2014] FamCAFC 85

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – parenting proceedings – contravention application – where the primary judge adjourned the hearing of a contravention application until a trial of substantive parenting proceedings – where the Full Court found no error of discretion in the primary judge’s orders – appeal dismissed – no order for costs.

FAMILY LAW – APPEAL – Application in an appeal – where the Full Court found that the orders sought by the appellant could not be made by the Full Court – application dismissed.

APPELLANT:

Mr Kettle

RESPONDENT:

Ms Baker

INDEPENDENT CHILDREN’S LAWYER:

Berck & Associates

FILE NUMBER:

BRC

6532

2009

APPEAL NUMBER:

2012

DATE DELIVERED::

14 May 2014

PLACE DELIVERED:

Canberra

PLACE HEARD:

Brisbane

JUDGMENT OF:

Finn, Strickland and Hogan JJ

HEARING DATE:

25 June 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT DATE OF ORDERS:

19 June 2012

REPRESENTATION

APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

No appearance

Orders

The appeal be dismissed.
The Application in an Appeal filed in Court on 25 June 2013 be dismissed.
There be no order for costs in relation to the appeal or the Application in an Appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kettle & Baker has been approved by the Chief Justice 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 79 of 2012
File Number: BRC 6532 of 2009

Mr Kettle

Appellant

And

Ms Baker

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

This is an appeal by Mr Kettle (“the father”) against an order made by Forrest J on 19 June 2012 whereby his Honour adjourned the hearing of an application, which the father had brought against Ms Baker (“the mother”) alleging contravention of certain parenting orders, to “the trial”, being the trial of an application by the father for further parenting orders in relation to the child B, who is the child of the parties’ relationship and who was born in August 2000.
Prior to the hearing of the appeal, both the solicitors for the mother and the Independent Children’s Lawyer had informed the Appeal Registrar that they did not wish to be heard on the appeal and would abide by any decision of the Court.
There may be an argument that in order to appeal Forrest J’s order adjourning the hearing of the contravention application, the father requires leave to appeal as the order is interlocutory. However, it might also be argued that it is an interlocutory order relating to children’s issues and thus does not require leave. Given the complexities that surround the proceedings in which the father has been involved, we propose in the interests of simplicity, to proceed on the basis that leave to appeal is not required.

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 & Baker

Details

AGLC: Kettle & Baker [2014] FamCAFC 85
Case: [2014] FamCAFC 85
Decision Date: 14 May 2014

CaseChat Overview and Summary

The appeal in Kettle & Baker was heard by the Full Court of the Family Court of Australia. The case involved a dispute between the parents of a child concerning parenting arrangements. The primary judge had made orders adjourning the hearing of a contravention application until the trial of the substantive parenting proceedings. The appeal was made by one of the parties, who argued that the adjournment was an error of discretion.

The legal issues before the court were whether the primary judge erred in adjourning the hearing of the contravention application and whether the Full Court had the authority to make the orders sought by the appellant in the Application in an Appeal. The court had to determine if the adjournment of the hearing was appropriate and if the Full Court had the power to grant the relief sought by the appellant.

The Full Court found no error of discretion in the primary judge’s orders, holding that the adjournment was appropriate in the circumstances. The court also found that the orders sought by the appellant in the Application in an Appeal could not be made by the Full Court. Consequently, the appeal was dismissed, and the Application in an Appeal was dismissed as well. The court made no order for costs in relation to the appeal or the Application in an Appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The Application in an Appeal filed in Court on 25 June 2013 be dismissed.

3. There be no order for costs in relation to the appeal or the Application in an Appeal.

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.