Kettle & Baker & Green - [2009] FamCAFC 113

FAMILY COURT OF AUSTRALIA

KETTLE & BAKER & GREEN

[2009] FamCAFC 113

FAMILY LAW - APPEAL – CHILD SUPPORT – where the trial Judge had before him applications by the two mothers of the father’s children for departure from Child Support Agency assessments against the father and applications by the mothers for the capitalisation of periodic child support for the purpose of such capitalised sums being held in trust for security for the future payment of periodic child support – where the trial Judge made departure orders for periodic child support and orders for the payment of lump sum child support in the event that the father defaulted in periodic child support payments but where the trial Judge did not order that the lump sums be held as security for future payments of periodic child support – where another Judge appointed a trustee for sale of the father’s farming property to satisfy his child support liabilities and other costs orders – leave to appeal granted – appeals allowed – orders of both Judges set aside – the mothers’ child support applications remitted for re-hearing.

FAMILY LAW - APPEAL – PARENTING – where the trial Judge ordered that the children of both mothers and the father should live with their mother and spend defined time with the father – where the mothers had made an application that the father’s appeals be summarily dismissed “for want of prosecution” or because the notices of appeal did not “disclose proper grounds of appeal” – finding that the husband’s parenting appeals did not disclose proper grounds of appeal – parenting appeals dismissed without further hearing pursuant to s 96AA of the Family Law Act 1975 (Cth).

Child Support (Assessment) Act 1989 (Cth) Part 7, Divisions 4 and 5, s 141
Child Support (Registration & Collection) Act 1988 (Cth) s 30, s 113A
Family Law Act 1975 (Cth) s 96AA
Family Law Rules 2004 (Cth) Rules 17.02 and 22.58 (now Rule 22.45)
Federal Proceedings (Costs) Act 1981 (Cth)

Darvall v Marmindie Holdings (2001) FLC 98-014; 27 Fam LR 267; [2000] FamCA 1614
Dwyer & McGuire (1993) FLC 92-420
Lightfoot & Hampson (1996) FLC 92-663
R & R (No 1) [2002] FMCAfam 153
Van Reesema & Giameos (1979) 27 ALR 525
Whelan & Rizzo (1995) FLC 92-567

APPELLANT:

Mr Kettle

RESPONDENT:

Ms Baker

Ms Green

FILE NUMBER:

(P)BRF

2360
1456

2002

2001

APPEAL NUMBER:

NA
NA
NA
NA
NA

2
3
19
20
69

of
of
of
of
of

2007
2007
2007
2007
2007

DATE DELIVERED:

7 July 2009

PLACE DELIVERED:

Canberra

PLACE HEARD:

Brisbane

JUDGMENT OF:

Finn, May and Murphy JJ

HEARING DATE:	3 March 2008
DATE OF LAST SUBMISSIONS:	30 June 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

Orders made on 24 November 2006; 31 January 2007; 7 September 2007

LOWER COURT MNC:

[2006] FamCA 1295; [2006] FamCA 1296; [2007] FamCA 1653

REPRESENTATION

COUNSEL FOR THE APPELLANT:

The appellant appeared in person

COUNSEL…

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 & Green

Details

AGLC: Kettle & Baker & Green [2009] FamCAFC 113
Case: [2009] FamCAFC 113
Decision Date: 7 July 2009

CaseChat Overview and Summary

The Court heard appeals concerning child support and parenting arrangements between the parties, Kettle, Baker, and Green. The fathers appealed decisions made by two Judges concerning child support assessments and the capitalisation of periodic child support for security against future default. The mothers opposed the appeals, arguing they lacked proper grounds. Additionally, the mothers sought to dismiss the father's parenting appeals for want of prosecution or improper grounds.

The Court considered whether the trial Judge erred in not ordering the capitalised sums to be held in trust for future periodic child support payments. The Court also examined whether the father's parenting appeals disclosed proper grounds for appeal. The Court found the father's appeals to lack proper grounds, and accordingly, dismissed the parenting appeals without further hearing under section 96AA of the Family Law Act 1975 (Cth).

The Court allowed the appeals against the child support orders, setting aside the orders for departure from Child Support Agency assessments and the capitalisation of periodic child support for security. The Court found the trial Judge erred in not ordering the lump sums be held as security for future periodic child support payments. The Court also set aside orders appointing a trustee for the sale of the father's farming property to satisfy child support liabilities. The Court remitted the mothers' child support applications for re-hearing before a different Judge.

The Court granted leave to appeal and allowed the appeals, setting aside the orders in question. The Court dismissed the mother's application to summarily dismiss the father's parenting appeals. The Court remitted the mothers' child support applications for re-hearing before a different Judge, and allowed the parties to file written submissions regarding costs.

Orders

Orders of the court

That leave to appeal Orders 14 and 15 of the orders of the Honourable Justice Bell made on 24 November 2006 in proceedings (P)BRF 2360 of 2002 be granted; that the appeal (NA 2 of 2007) be allowed; and that the orders be set aside.

That the appeal (NA 2 of 2007) against all other orders of the Honourable Justice Bell made on 24 November 2006 in proceedings (P)BRF 2360 of 2002 be dismissed pursuant to s 96AA of the Family Law Act 1975 (Cth).

That leave to appeal Orders 9 and 10 of the orders of the Honourable Justice Bell made on 24 November 2006 in proceedings (P)BRF 1456 of 2001 be granted; that the appeal (NA 3 of 2007) be allowed; and that the orders be set aside.

That the appeal (NA 3 of 2007) against all other orders of the Honourable Justice Bell made on 24 November 2006 in proceedings (P)BRF 1456 of 2001 be dismissed pursuant to s 96AA of the Family Law Act 1975 (Cth).

That leave to appeal Orders 14, 15 and 16 of the orders of the Honourable Justice Bell as amended on 31 January 2007 in proceedings (P)BRF 2360 of 2002 be granted; that the appeal (NA 19 of 2007) be allowed; and that the orders be set aside.

That leave to appeal Orders 9, 10 and 11 of the orders of the Honourable Justice Bell as amended on 31 January 2007 in proceedings (P)BRF 1456 of 2001 be granted; that the appeal (NA 20 of 2007) be allowed; and that the orders be set aside.

That leave to appeal the orders of the Honourable Justice O’Reilly made on 7 September 2007 in proceedings (P)BRF 2360 of 2002 and (P)BRF 1456 of 2001 be granted; that the appeal (NA 69 of 2007) be allowed; and that the orders be set aside.

That the application filed 14 October 2004 for child support orders in proceedings (P)BRF 2360 of 2002 be remitted for re-hearing before a Judge other than the Honourable Justice Bell.

That the application filed 14 October 2004 for child support orders in proceedings (P)BRF 1456 of 2001 be remitted for re-hearing before a Judge other than the Honourable Justice Bell.

10.

(a) That each party be at liberty to file and serve brief written submissions in support of an application for costs or costs certificates in relation to the appeals within 28 days of the date hereof.

(b) That each party have a further 28 days in which to file and serve any written submissions in answer to any submissions filed by the other party.

(c) That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

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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