KETTLE & BAKER & GREEN (INTERLOCUTORY APPEALS) - [2010] FamCAFC 77

FAMILY COURT OF AUSTRALIA

KETTLE & BAKER & GREEN
(INTERLOCUTORY APPEALS)

[2010] FamCAFC 77

FAMILY LAW - APPEAL – Application in an appeal – Appellant seeks a number of orders – Leave to appeal against orders made in 2004 – Injunction to stop proceedings in the Federal Magistrates Court – Disqualification of the judges who determined a previous Full Court appeal in this matter – Adjournment of appeal hearings “to a date to be fixed” – No sensible submissions made by the appellant to support the application – Application dismissed.

FAMILY LAW - APPEAL – From the Federal Magistrates Court – Appeals against interlocutory orders – Respondent mothers seeking departure orders from child support assessments – Federal Magistrate dismissed the appellant’s application for summary dismissal – Refusal to grant stay of proceedings pending determination of the appeals – Mothers’ applications originally filed in 2004 – Litigation in the proceedings longstanding and complicated – Assertion of procedural unfairness – Whether s 66E applies – No merit in appeals – Appeals dismissed.

FAMILY LAW - APPEAL – COSTS – Application for costs on an indemnity basis – Where appeal entirely unmeritorious – Disparity of parties’ financial circumstances – Appeals from orders made prior to the final hearing – Letter from respondents’ solicitors advising appellant of the unmeritorious nature of appeal – Indemnity costs order made for a fixed sum.

Family Law Act 1975 (Cth)

Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Kettle & Baker & Green [2009] FamCAFC 113
Kettle & Baker & Green [2010] FamCAFC 73
Xuereb & Xuereb [2007] FamCA 601
Yunghanns & Ors v Yunghanns & Ors; Yunghanns (2000) FLC 93-029

APPELLANT:

Mr Kettle

RESPONDENT:

Ms Baker

Ms Green

FILE NUMBER:	BRC	6527	of	2009
BRC	6532	of	2009

APPEAL NUMBER:	NA	22	of	2010
NA	23	of	2010
NA	39	of	2010
NA	40	of	2010

DATE DELIVERED:

14 April 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Strickland & Murphy JJ

HEARING DATE:

12 April 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

25 November 2009 and

22 February 2010

LOWER COURT MNC:

[2009] FMCAfam 1488

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

In person

SOLICITOR FOR THE RESPONDENTS:

Ms Ellis

Burchill & Horsey Lawyers

Orders

The appeals NA 22, NA 23, NA 39 and NA 40 of 2010 are dismissed.
The application in an appeal filed by the appellant on 7 April 2010 is dismissed.
The appellant pay to the solicitors for the respondents the costs of each respondent fixed in the sum of $2,500.

IT IS NOTED that publication of this judgment under the pseudonym Kettle & Baker & Green (Interlocutory Appeals) 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 22 of 2010
  NA 23 of 2010
  NA 39 of 2010
  NA 40 of 2010
File Number: BRC 6527 of 2009

BRC 6532 of 2009

Mr Kettle

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: KETTLE & BAKER & GREEN (INTERLOCUTORY APPEALS) [2010] FamCAFC 77
Case: [2010] FamCAFC 77
Decision Date: 14 April 2010

CaseChat Overview and Summary

The case involved an appeal from decisions of the Federal Magistrates Court, where the appellant sought various orders including leave to appeal, an injunction, and the disqualification of judges. The appeals were from interlocutory orders made in 2004, where the respondent mothers sought departure orders from child support assessments. The Federal Magistrate had dismissed the appellant’s application for summary dismissal and refused to stay the proceedings pending the determination of the appeals. The litigation had been ongoing and complicated, with the appellant alleging procedural unfairness and claiming that section 66E applied. However, the court found no merit in the appeals and dismissed them.

The court examined whether section 66E of the relevant legislation applied and whether there was procedural unfairness in the proceedings. The court found that the appeals were unmeritorious and the appellant had failed to make any sensible submissions to support the application. The longstanding and complicated nature of the litigation did not provide grounds for the appellant’s claims of unfairness. The court concluded that the appeals had no merit and dismissed them accordingly.

In light of the unmeritorious nature of the appeals, the court considered an application for costs on an indemnity basis. The appellant’s financial circumstances were significantly better than those of the respondents, and the appeals were from orders made prior to the final hearing. The court noted that the respondents’ solicitors had already advised the appellant of the unmeritorious nature of the appeal. Therefore, the court made an indemnity costs order for a fixed sum, with the appellant required to pay $2,500 to each respondent’s solicitors.

The final orders of the court were that the appeals NA 22, NA 23, NA 39 and NA 40 of 2010 were dismissed. The application in an appeal filed by the appellant on 7 April 2010 was also dismissed. The appellant was ordered to pay the solicitors for the respondents the costs of each respondent fixed in the sum of $2,500.

Orders

Orders of the court

The appeals NA 22, NA 23, NA 39 and NA 40 of 2010 are dismissed.

The application in an appeal filed by the appellant on 7 April 2010 is dismissed.

The appellant pay to the solicitors for the respondents the costs of each respondent fixed in the sum of $2,500.

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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