KETTLE & BAKER; KETTLE & GREEN - [2013] FamCAFC 14

FAMILY COURT OF AUSTRALIA

KETTLE & BAKER;
KETTLE & GREEN

[2013] FamCAFC 14

FAMILY LAW – APPEAL – APPLICATIONS FOR LEAVE AND EXTENSION OF TIME TO FILE NOTICES OF APPEAL – Where the applicant seeks to appeal from orders in relation to child support made in two separate matters – Where the orders appointed a trustee for sale and directed the trustee to sell property to meet the applicant’s child support debt – Where the trustee for sale appeared and informed the Court that he was in the process of selling property – Where the applicant attempted to file a single notice of appeal in time – Where the Child Support legislation required the applicant to seek leave to appeal from the orders and leave was not sought in the notice of appeal – Where the Regional Appeals Registrar advised the applicant of the requirements to file two separate notices of appeal and to seek leave – Where the applicant failed to file the two notices of appeal in time – Where the applications for leave to appeal out of time were not properly filed in the appeal proceedings until eight months after the applicant was informed by the Registrar of the leave and extension of time requirements – Where a stay against the orders the subject of the proposed appeal was refused – Where no appeal against the refusal to grant a stay was filed – Where the applicant is an experienced litigant in this Court and should be aware of the requirement to file two separate notices of appeal, following a similar application by him in 2010 – Where substantial prejudice would flow to the respondent mothers if the application was granted –Where the sale of property required by the orders represents only a small portion of the applicant’s property – Where the applicant maintains he would seek that the Registrar or the respondents prepare the appeal books and provide the transcript – Where having regard to the proposed grounds of appeal and the reasons for judgment it is not apparent how any of the applicant’s grounds of appeal might succeed – Where the delay and the attendant difficulties in the appeal being prepared and heard are so substantial that an extension of time to file the notices of appeal should not be allowed – Applications dismissed.

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth) ss 94AA, 66E
Family Law Rules 2004 (Cth) Part 22.2

Clivery & Conway [2007] FamCA 1435
Gallo v Dawson (1990) 93 ALR 479
Kettle & Baker & Green [2010] FCAFC 73
Kettle & Baker & Green (Interlocutory Appeals) [2010] FamCAFC 77
Kettle & Baker & Green (No 2) [2007] FamCA 1651
Thurston & Thurston (No 2) [2012] FamCAFC 222

APPLICANT:

Mr Kettle

RESPONDENT (NA 81/2011):

Ms Baker

RESPONDENT (NA 82/2011):

Ms Green

FILE NUMBERS:	BRC 6527 of 2009
BRC 6532 of 2009

APPEAL NUMBERS:	NA 81 of 2012
NA 82 of 2012

DATE DELIVERED:

15 February 2013

PLACE DELIVERED:

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; KETTLE & GREEN

Details

AGLC: KETTLE & BAKER; KETTLE & GREEN [2013] FamCAFC 14
Case: [2013] FamCAFC 14
Decision Date

CaseChat Overview and Summary

In this case, Mr Kettle seeks an extension of time to file two notices of appeal in relation to orders made in two child support matters. The orders were made by the Federal Magistrates Court and directed a trustee to sell certain parcels of land owned by Mr Kettle to meet his child support debt. Mr Kettle is substantially out of time, nearly ten months past the due date for filing the notices of appeal. The proposed notices of appeal concern orders made by Federal Magistrate Jarrett on 4 November 2011. The orders provide that the child support assessment in relation to the named children be departed from and capitalised, with a solicitor appointed as trustee for sale of certain parcels of land owned by Mr Kettle. Mr Kettle filed an application for a stay of the orders, which was dismissed as notices of appeal had not been filed. The trustee for sale informed the court that Mr Kettle filed proceedings in the Federal Court of Australia, which was also dismissed. The trustee further informed the court that Mr Kettle lodged caveats over the properties to be sold, which were subsequently removed. The proposed notices of appeal contain six grounds, which are largely rejected as having no merit. The key issue is whether justice demands that Mr Kettle be given an opportunity to prosecute his appeal. The court found that the delay and the attendant difficulties in the appeal being prepared and heard are so substantial that an extension of time to file the notices of appeal should not be allowed. The application is dismissed, and Mr Kettle is ordered to pay the respondents' and the trustee's costs.

Orders