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: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 12 February 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 4 November 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 1169 |
REPRESENTATION
| THE APPLICANT | In person |
| SOLICITOR FOR THE RESPONDENTS: | Burchill & Horsey Lawyers |
TRUSTEE FOR SALE: Mr Peter Sheehy
Orders NA 81/2012
The applications filed 30 January 2012 are dismissed.
The applications filed 27 September 2012 are dismissed.
The applicant pay the respondent’s costs fixed in the sum of $2,500.00. Such costs to be paid from the balance of the net proceeds of sale of the properties to be sold by the trustee, Mr Sheehy.
The applicant pay the costs of the trustee for sale, Mr Sheehy, fixed in the sum of $1,500.00. Such costs to be paid from the net proceeds of the sale of land as ordered by Federal Magistrate Jarrett on 4 November 2011.
Orders NA 82/2012
The applications filed 30 January 2012 are dismissed.
The applications filed 27 September 2012 are dismissed.
The applicant pay the respondent’s costs fixed in the sum of $2,500.00. Such costs to be paid from the balance of the net proceeds of sale of the properties to be sold by the trustee, Mr Sheehy.
The applicant pay the costs of the trustee for sale, Mr Sheehy, fixed in the sum of $1,500.00. Such costs to be paid from the net proceeds of the sale of land as ordered by Federal Magistrate Jarrett on 4 November 2011.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kettle & Baker; Kettle & Green has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 81 of 2012
NA 82 of 2012
File Number: BRC 6527 of 2009
BRC 6532 of 2009
| Mr Kettle |
Applicant
And
| Ms Baker |
Respondent (NA 81/2012)
And
Ms Green
Respondent (NA 82/2012)
REASONS FOR JUDGMENT
By two applications filed 27 September 2012, Mr Kettle seeks an extension of time to file two notices of appeal in relation to orders made in two matters separately instituted by Ms Baker, BRC 6532 of 2009 and Ms Green,
BRC 6527 of 2009. The two matters were determined in the one hearing, with the delivery of one judgment but separate orders.
The proposed notices of appeal concern orders made by Federal Magistrate Jarrett on 4 November 2011. It can thus be seen that Mr Kettle is substantially out of time, nearly ten months at the time of filing this application.
The orders made by the Federal Magistrate relate to Child Support proceedings in relation Ms Baker, the mother of one child and Ms Green, the mother of two children. Mr Kettle is the father of the three children.
In both matters the orders provide that the child support assessment in relation to the named children be departed from and capitalised. Further, in the event that the sums of $88,440 (in respect of Ms Green) and $96,120 (in respect of Ms Baker) not be paid by 3 February 2012 a solicitor, Mr Sheehy, was appointed trustee for sale of certain parcels of land owned by Mr Kettle.
Mr Kettle did not pay the money as ordered.
The orders provided that upon sale, the net proceeds be applied to satisfy the child support debt and to discharge the substantial costs liabilities pursuant to orders dated 30 August 2005, 5 July 2006 and order 14 of the Full Court made 26 November 2007. The balance was to be paid to Mr Kettle.
Mr Kettle filed on two occasions an application for a stay of the orders of the Federal Magistrate. The first was on 30 January 2012, which was dismissed as notices of appeal had not been filed. The second was on 27 September 2012. For the purposes of that application, Federal Magistrate Jarrett accepted that the notices of appeal had been filed (the applications in appeal for an extension of time to file the notices having been filed the same day), but refused the stay application and ordered that Mr Kettle pay each of the respondent’s costs fixed in the sum of $650.00 per respondent.
Mr Sheehy filed an affidavit by leave at the hearing of this application. In that affidavit Mr Sheehy outlines the events which have taken place since September 2012 as follows:
1.I am the Solicitor appointed Trustee for Sale by Order of the Federal Magistrates Court on the 4th November, 2011.
2.Pursuant to those Orders, I held an auction of certain of the properties to seek to achieve the past Child Support and future capitalised Child Support which has been calculated by the Child Support Agency to be $414,000 as at September, 2012.
3.The auctions took place [in] September, 2012 and I was successful in selling two parcels of land of the four parcels that were auctioned.
4.Mr [Kettle] attended the auction. On the morning of the auction Mr [Kettle] lodged a caveat over the four parcels of land which were being auctioned [in] September, 2012.
5.On a date unknown to me the Registrar of Titles removed the caveat for failure by Mr [Kettle] to answer a requisition issued by the Registrar of Titles on the caveat.
6.[In] November, 2012 Mr [Kettle] lodged a further caveat over four titles (including the two that I had sold). On a date unknown to me the caveat was removed by the Registrar of Titles for failure by Mr [Kettle] to answer a requisition issued.
7.[In] November, 2012 a further caveat was lodged over the same four titles by Mr [Kettle]’s parents in which they claim an interest as equitable mortgagees. I have filed an Application in the Supreme Court returnable [in late] February, 2013 to have the caveat removed and I am also seeking costs against Mr [Kettle]’s parents.
8.As a result of the lodgement of the caveats referred to above, on each occasion I have been able to exercise my rights as seller pursuant to the Contract of Sale to extend the Contract to enable me to provide title to the purchasers.
9.As Seller, I have the right to extend the contract to enable me to provide title, but after a certain period of time in accordance with the terms of the Contract, the Buyer will have the right to terminate the Contract on the basis that I cannot provide title.
10.The Contract is still on foot awaiting the outcome of the Supreme Court Application on 22nd February, 2013.
Background
For a complete picture, and to properly appreciate Mr Kettle’s arguments, it is necessary to explain the circumstances surrounding this application.
The correspondence documents to which I will refer were tendered in this hearing by Mr Kettle and were marked Exhibit 1.
On 1 December 2011, Mr Kettle attempted to file a notice of appeal in relation to the orders of 4 November 2011. On 6 December 2011 the Appeals Registrar wrote to Mr Kettle as follows:
I return to you the unfiled notice of appeal lodged with the court on 1 December 2011.
There is an order made by Federal Magistrate Jarrett on 4 November 2011 against file BRC6527/2009 and another order made 4 November 2011 against file BRC6532/2009 so you will need to lodge two separate notice [sic] of appeal. I have enclosed the two orders and two notices of appeal for you to complete and these documents, when returned, will be filed as of 1 December 2011.
The draft appeal index for the appeals will need to be filed with the court before 29 December 2011. I have enclosed a template for you to complete and return for filing.
The order sought to be appealed appears to be [sic] child support order and therefore, one in respect of which leave to appeal is required under s.94AA of the Family Law Act as it is a matter under the child support legislation.
On 13 December 2011 Mr Kettle wrote to the Appeals Registrar. He did not return the two separate notices of appeal. Those relevant parts of the letter are repeated below:
I refer to your letter to me dated 6 December 2011 which accompanied the return of the Notices of Appeal personally lodged by me for filing on 1 December 2011.
…
Please expeditiously confirm whether or not you will make whatever arrangements may be necessary to file my appeal without any requirement for Leave. And do so, please, in light of what herein follows.
I am entitled to appeal this absurd travesty wrought by Michael Jarrett – a clearly biased junior judicial officer who should long ago have ceased to hear any matter of mine.
…[T]he trickery involved in this latest disgusting saga disgusts me and I can and have read your Rules.
…
I am not prepared to expose myself to any opportunity for your several biased judicial officers to decline a request from me for “Leave” to appeal when applying without leave is my absolute Right. You figure out how to get this done and I don’t frankly care how you do it. Rules numbered between 93A (which prima facia entitles me to appeal) and 94AA (inclusive) create a mess with an apparency that I should seek Leave.
…
Get this filed straight up. I will not tolerate your court’s trickery and corruption any longer.
…Get my appeal filed before the Full Court expeditiously, however you might choose to do it. Or else.
…Why should I have to redo everything in duplicate when they have never had to ????? Orders have usually been issued together and nearly all of the documents issued over ten years BY the court, have been combined both causes into ONE set of documents:
…
Further, due to this debacle. Please confirm in writing, expeditiously that the time for me needing to file a draft appeal index is substantially extended from the date previously advised. I did not cause the delay and I will not have my right at risk for errors on your end of things and in any event, I cannot address the issue before mid January.
I expect your formal response to arrive within seven days, please.
(original emphasis)
Having received no response, on 19 December 2011 the Appeals Registrar wrote to Mr Kettle as follows:
With reference to your letter dated 6 December 2011.
To date you have not returned the notices of appeal which were sent by express post for you to complete and return against orders made on 4 November 2011.
If you still intend to lodge an appeal against these orders, I now enclose two applications in appeal to extend the time to file a notice of appeal and affidavits in support.
(emphasis added)
On 22 December 2011 the Appeals Registrar again wrote to Mr Kettle as follows:
Your correspondence of 13 December 2011 is noted.
The Notice of Appeal contained therein is returned for the reasons previously outlined in the letters to you of 6 December 2011 and 19 December 2011 (further copies enclosed for your information) as those matters have not been addressed. In addition to the legislation referred to in that correspondence please note section 102A of the Child Support (Assessment) Act which is also relevant.
On 16 January 2012, Mr Kettle wrote to the Appeals Registrar as follows:
…[P]lease file the attached revised Notices of Appeal in the above matters.
In response, on 19 January 2012, the Appeals Registrar wrote to Mr Kettle as follows:
The two Notices of Appeal you seek to file are returned unfiled. I return the documents for the following reasons:
1.The orders that you seek to appeal were made on 4 November 2011 with Notices of Appeal due 2 December 2011
2. Therefore you are out of time to appeal that decision.
…[Y]ou should file an application in an appeal and supporting Affidavit seeking an extension of time with the draft Notice of Appeal attached.
It seems that the next step taken by Mr Kettle was to go overseas on holiday.
On 30 January 2012, Mr Kettle filed two applications in the separate matters in the Federal Magistrates Court asking in both applications that:
1.Registrar Kane is directed to file the applicant’s appeal papers (originally submitted on 1 December 2011) in a form amended as may be required and that filing is to bear the date of filing as being 1 December 2011
2.A STAY issue with effect that any orders sought to be appealed in relation to the orders of FM Jarrett dated 4 November 2011 and any subsequent orders made relating to costs in the same matter, are Stayed past the date of determination of this Application for the number of days elapsed between the filing of this application and the determination of this Application.
3.A Costs certificate issue to the Applicant in this application and there be no other orders as to costs in relation to this application.
It was not filed in the Appeal Registry as there was no current appeal.
On 6 February 2012, Federal Magistrate Jarrett made orders in both applications as follows:
1.The respondent’s application for costs is refused.
2.The matter be adjourned to 20 February 2012 at 9.30 a.m. for directions in the Federal Magistrates Court sitting at Brisbane.
Mr Kettle took no further action in relation to the appeals until the filing of the application on 27 September 2012.
Mr Sheehy, the trustee for sale informed the Court that Mr Kettle filed proceedings in the Federal Court of Australia. One week before the auction
Mr Kettle asked the Federal Court for orders that the order of Federal Magistrate Jarrett be stayed. Dowsett J refused the application. As the trustee explained in his affidavit, just prior to the auction Mr Kettle filed caveats on the property. His parents claim an equitable interest in part of the land. This claim is disputed and will be heard in the Supreme Court of Queensland in late February 2013.Mr Sheehy is hopeful that despite these difficulties the contracts will settle.
Litigation History
To state that this matter has a long history would hardly convey the background to these proceedings. It is necessary in the context of this application to only refer to some of the previous reasons of this Court including Kettle & Baker & Green [2010] FCAFC 73, Kettle & Baker & Green (Interlocutory Appeals) [2010] FamCAFC 77, and Kettle & Baker & Green (No 2) [2007] FamCA 1651.
Mr Kettle is an experienced litigant in this Court. There have been nine occasions the Full Court has dealt with his appeals and associated interlocutory matters, nine occasions that trial judges in the Family Court of Australia have dealt with this matter, together with the Federal Magistrates Court hearing the matter on five occasions.
In the context of appeals, on 24 March 2010 there was a hearing culminating in Mr Kettle being given an extension of time to appeal. The difficulty on that occasion was not dissimilar to the present. In particular, Mr Kettle had not filed two appeals, one for each matter. It is useful to repeat part of the reasons on that occasion:
2.It is asked that leave be given out of time although Mr [Kettle], according to the chronology he has provided me, first attempted to file an appeal on 23 December 2009. It was rejected. The difficulty was that two separate notices of appeal are required for the two respondents. As Ms Ellis, who appears for the two respondents, correctly points out, Mr [Kettle]’s action left the filing of the notice of appeal to the last possible moment, the order having been made by the Federal Magistrate on 25 November 2009.
…
7.I would have to say in relation to the merits of the appeal that they are marginal. It is difficult to immediately see that this appeal can be successful. However, it is also wrong to suggest that there is no possibility that it could be successful. One of the difficulties in my saying this is that I do not have the judgment of the Federal Magistrate.
…
9.In relation to the explanation for the delay, what Ms Ellis says again has much merit. That is, as an experienced litigant, Mr [Kettle] should not have left it until the last possible moment, although one would have to accept that these documents are somewhat difficult for litigants in person.
…
12.I have determined, although the merits of the appeals are marginal, to allow Mr [Kettle] leave to file the two notices of appeal.
Reasons of the Federal Magistrate
Those parts of the Federal Magistrate’ reasons delivered on 4 November 2011 in relation to the orders that Mr Kettle now seeks leave to appeal from, relevant to this application, are repeated below:
51.Mr [Kettle]’s financial statement reveals that his occupation is that of self employed [farmer]. He operates his farm in partnership with his wife as “[Mr and Mrs Kettle]”. He discloses a nil income. He discloses that his wife has a nil income. His fixed weekly expenses amount to $68.46 – $68.00 for child support for his three children the subject of these proceedings and $0.46 per week by way of life insurance premiums.
…
56.I am satisfied that Mr [Kettle] made no proper attempt to inform either the Court or the applicants of his true financial position. On his own evidence, he clearly is in receipt of income but has made no attempt to disclosure [sic] the nature and source of the income. I do not accept that he has an income of nil, however, I cannot make any findings about his actual income.
…
58.Mr [Kettle]’s farming property consists of 17 parcels of real property with 17 separate titles. Combined, the parcels have an area of 161.2887ha. There is valuation evidence before me from [Mr C], registered valuer, that the property taken as a whole has a market value at the time of his valuation (1 April, 2010) of $3,000,000.00. [Mr C] also valued each parcel separately. The aggregate value of the individual lots is $3,115,000.00. Mr [Kettle] cross-examined [Mr C], but his evidence as to value was unshaken. I accept [Mr C’s] evidence.
…
71.Hardship between the respective parties must be balanced. Ms [Green] and Ms [Baker] have never received an adequate level of child support in respect of their respective children from Mr [Kettle]. They have been primarily responsible for the financial burdens cast upon them by their parenting responsibilities. Whilst Mr [Kettle] has, in the past, paid some modest level of child support, he has paid none since July 2008, yet at the same time he has had the use and enjoyment of substantial property.
72.I am not satisfied that the making of the departure orders sought by the applicants will work any particular hardship to Mr [Kettle]. He may have to sell a portion of his property holdings to assist him to meet his obligations if he cannot otherwise meet them from income. But the hardship to each of the applicants if a departure order is not made cannot otherwise be ameliorated.
Principles
In considering this application the first question is whether there is an explanation for the delay. Mr Kettle maintains that he is not out of time because the notice of appeal was delivered to the Registry on 1 December 2011.
The second question is a consideration of whether justice demands the applicant be given an opportunity to prosecute his appeal. Although it cannot be definitive, having regard to limited information, there must be some assessment of the possible merits. The third and in this matter the compelling feature is the prejudice to the respondents.
The principles relating to applications for an extension of time to file an appeal are well settled. It is appropriate to refer to Gallo v Dawson (1990) 93 ALR 479, and the discussion by the Full Court in Clivery & Conway [2007] FamCA 1435:
13.The principles in relation to extensions of time provided by Rules were discussed by McHugh J in Gallo v Dawson (1990) 93 ALR 479. Although his Honour was there considering an application for leave to appeal out of time, it is accepted that the principles he discussed are relevant to all applications for leave to extend time limits provided by Rules.
14.The principles emerging from Gallo v Dawson may be summarised as follows:
• The grant of an extension of time is not automatic.
•The object is to ensure that Rules which fix times do not become instruments of injustice.
•Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
•When determining whether the Rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.
•When considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
The Proposed Notices of Appeal
The orders sought in the notices of appeal are divided into two categories – interlocutory and final. Under the interlocutory section it is asked that the application be heard by the Full Court and a stay issue. Further, that leave be given to adduce further evidence and a subpoena issue to the Child Support Agency, that the Registry provide the relevant transcripts and prepare the appeal books. In addition, although it is not explained how this Court would have power to so order it is asked:
7.A Costs Certificate issue to the Appellant for the hearing of this appeal, well prior to the hearing of this appeal, so that he may be legally represented at hearing
OR
In the alternative Appellant has Leave to be represented by a legally trained person.
Under the heading “Final Orders” it is asked that the orders of the Federal Magistrate be “Quashed ab initio” and there be no rehearing because:
9.A Declaration that no rehearing of the matter may proceed because any such hearing would be statutorily ultra vires by virtue of Section 66E of the Family Law Act OR,
in the alternative statutorily ultra vires in relation to the 2004 Applications subject of these proceedings.
As this is an appeal from Child Support orders leave is necessary. No where in the proposed notice of appeal is the basis for such leave provided.
The notices of appeal each contain six grounds. They will be set out in full for the purpose of considering the likely prospects of success. The grounds are as follows:
1.There is res judicata regarding orders previously made having been overturned by a superior court’s Full Bench (which itself denies that there are any further legal avenues available to the Appellant) in that FM Jarrett’s orders subject of this Appeal are so similar to the orders previously considered and successfully appealed before the Full Court of the Family Court that it is an Abuse of Process by FM Jarrett to, in essence, reissue the same orders as previously overturned on Appeal. [Refer to Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi [1999] HCA 27 (17 June 1999)]
2.The rehearing of FM Jarrett was ultra vires because he is not a “Judge” of the Family Court and this is not authorised to preside over the rehearing as ordered by the Full Bench of the Family Court, inter alia because despite Justice Murphy having been on the Full Bench in question, later, as a single judge, he did not have jurisdiction to override and vary the terms of the Full Court’s orders and delegate the rehearing to a judicial officer in another court who is not a “Judge.”
3.The rehearing of this matter and making orders of the type made and now appealed from is statute barred, as was the previous hearing of it in appeal wherein the orders made did not simply declare the orders appealed from void for being ultra vires, as was the making of the orders originally appealed from ultra vires by virtue of the self evident statutory prohibition on making such orders as now subject of the appeal in Section 66E of the Family Law Act for all of the Reasons set out in Appellant’s 37 page Outline of Argument before the Full Bench of the Family Court – an Outline now relied upon in this appeal.
4.FM Jarrett has previously displayed extreme bias towards the Appellant ; an actual bias or the apprehension of bias that any ordinary, reasonable person would perceive as such.
5.All of the provisions of Section 5 of the Administrative Decisions (Judicial Review) Act 1977 regarding Grounds substantiating legal error in respect of this appeal.
6.All of the provisions of Section 6 of the Administrative Decisions (Judicial Review) Act 1977 regarding Grounds showing misfeasance, malfeasance, bias, apprehension of bias and ultra vires judicial conduct militating for an unbiased judicial officer to hear any subsequent related matter.
Applicant’s Submissions
Mr Kettle made oral submissions at the hearing before me, and I also granted him leave to be assisted by a Mr B (see Thurston & Thurston (No 2) [2012] FamCAFC 222). Written submissions were also contained in his supporting affidavit filed on 27 September 2012, which merely referred to the affidavit filed the same day before the Federal Magistrate in the stay application. That affidavit contained the following information:
1. FM JARRETT MADE ORDERS LAST 4TH NOVEMBER WHICH ARE BEYOND POWER FOR MULTIPLE REASONS,
WITHIN TWO DAYS, SELLING MY FARMPROPERTY AT AUCTION IS SCHEDULED DESPITE THE IMPROPRIETY OF THE ORDERS INVOLVED.
I SEEK A VERY URGENT HEARING PLEASE.
PLEASE CONTACT ME ON PHONE [number omitted] OR [number omitted]
2. THIS IS MY HOME AND MY CHILDRES [sic] HOME AND THE COURT HAS NOT LISTED MY APPEAL SINCE FEBRUARY PLEASE HELP
In an affidavit filed on 30 January 2012 in the Federal Magistrates Court,
Mr Kettle referred to the letters from the Registrar of 6 December 2011 and
19 January 2012, and noted his objection to having to prepare two notices of appeal. Further he seems to suggest that at whatever time he chose to file an appeal, it should be back dated to 1 December 2011. It also seems that
Mr Kettle takes issue with the need for leave.On the day of hearing this application, Mr Kettle was given leave to file a further affidavit and an outline. In the outline Mr Kettle maintained that the appeal was filed on 1 December 2011 in accordance with the Family Law Rules 2004 (Cth) (“the Rules”). It was also said there was no “deadline” provided for the filing of further documents.
In the affidavit it is demanded that the Court read a number of previous affidavits filed in the Federal Magistrates Court proceedings. The contents of this document are abusive, threatening, largely incomprehensible and irrelevant to this application. It can be taken from the document that Mr Kettle objects to me and two other members of the Appeal Division hearing his matter, that he has a good argument as to why the orders of Federal Magistrate Jarrett should be set aside and that it is unreasonable to expect him to file two notices of appeal in respect of the applications brought by Ms Baker and Ms Green.
Some reference is made to the appeal itself, including the assertion that the court has no jurisdiction to make the orders made by Federal Magistrate Jarrett and that the matter should not have been transferred by a Judge of the Family Court of Australia to the Federal Magistrates Court.
Mr Kettle also asks that I deal with his applications filed on 30 January 2012. As mentioned, these applications were filed in the Federal Magistrates Court. Federal Magistrate Jarrett on 20 February 2012 transferred them to the Family Court of Australia on the occasion he refused the stay application. It was also ordered that the applicant pay respondents’ costs fixed in the sum of $500.00.
I will also deal with this application in these proceedings as they raise the same issues. Consistent with my decisions in relation to the applications filed 27 September 2012, the applications filed 30 January 2012 will be dismissed.
In essence, Mr Kettle maintains that he did file the notice of appeal within time, that if he was required to file two appeals (which he resists) then no deadline was provided for these documents to be filed so that an extension of time should now be given. Further, it is suggested that there are arguable grounds of appeal which will certainly succeed, and there is therefore no prejudice to the respondents.
Submissions on Behalf of the Respondents
Ms Ellis appeared for both respondents. She correctly referred to the history of the proceedings, that Mr Kettle had been required to obtain an extension of time in the past for the same reason, and that he simply made no effort to comply with the Rules. Further, that no draft index to the appeal books was filed as required, and that there is no satisfactory explanation for the delay between January 2012 and 27 September 2012.
Ms Ellis described the grounds of appeal as “nonsense” and carefully made submissions about each ground demonstrating that they had little substance. For example - Ground 2 –
2.The rehearing of FM Jarrett was ultra vires because he is not a “Judge” of the Family Court and this is not authorised to preside over the rehearing as ordered by the Full Bench of the Family Court, inter alia because despite Justice Murphy having been on the Full Bench in question, later, as a single judge, he did not have jurisdiction to override and vary the terms of the Full Court’s orders and delegate the rehearing to a judicial officer in another court who is not a “Judge.”
By reference to the ex tempore reasons of Murphy J on 24 July 2009, it can be seen that Mr Kettle did not argue against the transfer to the Federal Magistrates Court.
It is Ms Ellis’s submission that leave would not be granted and that there is no merit in the appeal.
Quite properly Ms Ellis emphasised the substantial prejudice which would flow to the two respondent mothers should an extension of time be granted. These proceedings commenced in October 2004 when two of the children were aged five and the other was aged ten. Apparently they are now 12, 13 and nearly 18. Reference was made to the Federal Magistrate accepting the valuation evidence that the farm of the applicant is valued at $3,000,000.
Mr Sheehy – The Trustee
Within the confines of his role in the proceedings, Mr Sheehy submitted that there was no proper explanation for the delay from January 2012 to when the application was filed on 27 September 2012. Further, it was said that the letter of 13 December 2011 from Mr Kettle to the Court said what action he intended to take, being none. Further, ignoring the orders from the Family Court of Australia, Mr Kettle filed proceedings in the Federal Court of Australia, where he was unsuccessful.
As to the question of prejudice to each party, Mr Sheehy explained that only part of the land is to be sold to achieve a sum in the vicinity of $450,000 to cover the order (including costs) so that a large part of the land would be retained by Mr Kettle.
A further important consideration referred to by Mr Sheehy is that at no time has the applicant in the stay proceedings or these offered to pay the costs. It can readily be seen that should an extension of time be granted, the costs of the respondents to this application and the trustee would be resisted by Mr Kettle and they would face the expensive process of an appeal.
Mr Kettle maintains he has no income, other than from a pension and would therefore not be able to meet the costs of an unsuccessful appeal. On this basis, it is not apparent how Mr Kettle would attend to the purchase of transcript and the preparation of the appeal books.
Conclusions
The first question is did Mr Kettle file his appeal in time? The answer is that although Mr Kettle attempted to file a document on 1 December 2011 it did not comply with the Rules in that there was no reference to leave as this is an appeal in relation to Child Support.
Part 22.2 of the Rules provides as follows:
Starting an Appeal
Note A person needs the court’s permission to appeal from:
…
(b)an order, made by a court, mentioned in section 102, 102A or 105 of the Assessment Act or section 107, 107A or 110 of the Registration Act.
In relation to the possible merits of the appeal, as correctly submitted by the solicitor for the respondents, it is not apparent how any of these grounds of appeal might succeed.
It should also be mentioned that here has been no appeal filed from the refusal of the stay. It is unlikely that an appeal would have succeeded since at the time of the hearing the stay Mr Kettle had not filed notices of appeal, although he attempted to do so. As mentioned, the Federal Magistrate gave Mr Kettle the benefit of the doubt and accepted that a notice of appeal had been filed in time, but refused the stay application.
Leaving aside the question of merit, in this case the most significant factor is the prejudice to the respondents.
The mothers of these three children have received very little money from
Mr Kettle to assist with their support and upbringing. After many years of litigation, orders have now been made which will see some proper resolution of this dispute.
To give Mr Kettle an extension of time to file the appeals would inevitably lead to substantial delay. Based on his own application contained in the proposed draft notices of appeal he is unable to purchase the transcript and the file the appeal books. 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.
costs
The trustee appeared to assist the court, it was necessary because of these applications and the conduct of Mr Kettle. He should have his costs fixed at $1,500 to be paid from the proceeds of sale.
The application has been unsuccessful. Section 117(1) provides relevantly, subject to s 117(2) each party shall pay their own costs. In this case there are circumstances which justify an order for costs.
The respondents properly resisted the application. They are in receipt of legal aid. The proceedings were necessitated by the failure of the applicant to comply with the Rules despite clear instructions from the court together with being given the indulgence of further time.
The applicant has the capacity to meet a costs order from the sale proceeds of part of his property.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 15 February 2013.
Associate:
Date: 15 February 2013
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