KETTLE & GREEN - [2014] FamCAFC 98

FAMILY COURT OF AUSTRALIA

KETTLE & GREEN

[2014] FamCAFC 98

FAMILY LAW – APPEAL – CHILD SUPPORT – Presumptions of parentage – Where father completed statutory declaration that the child is his – Where after years of litigation and after child turns 18, father seeks to put paternity of child in issue – s 69S presumption of parentage arising from findings of courts is operative presumption – Where father cannot press for relief predicated upon s 69P presumption of parentage arising from marriage – Where father sought repayment of child support – Where relief pursuant to s 143 of the Child Support Assessment Act 1989 (Cth) is conditional upon declaration pursuant to s 107 of the Child Support Assessment Act 1989 (Cth) that the person should not be liable to pay child support – Where father’s application summarily dismissed – No error established.

FAMILY LAW – APPEAL – INJUNCTION AGAINST INITIATING PROCEEDINGS – Whether order restraining father instituting proceedings validly made – Where the decision of a superior court, even if in excess of jurisdiction, is valid unless and until it is set aside – Whether pursuant to s 118 of the Family Law Act 1975 (Cth) or s 143B of the Child Support Assessment Act 1989 (Cth), order valid – No denial of procedural fairness established.

FAMILY LAW – APPEAL – PRACTICE & PROCEDURE – Where response filed electronically – r 24.07 (filing by email and internet) considered – No error established – APPEAL DISMISSED.

FAMILY LAW – COSTS – Father to pay mother’s costs of appeal.

Child Support Assessment Act 1989 (Cth): ss 100, 107, 143, 143B
Family Law Act 1975 (Cth): ss 69P, 69S, 69U, 93A, 94AAA(3), 94(2D), 117, 118

Family Law Rules 2004 (Cth): rr 4.20, 10.12, 10.14, 24.07
Federal Circuit Court Rules 2001 (Cth): r 7.01

CDJ v VAJ (1998) 197 CLR 172
DMW v CGW (1982) 151 CLR 491
In the marriage of Tobin (1999) FLC 92-848
Kettle & Baker & Green (Interlocutory Appeals) [2010] FamCAFC 77
Re: Macks; Ex Parte Saint (2000) 204 CLR 158

APPELLANT:

Mr Kettle

RESPONDENT:

Ms Green

FILE NUMBER:

BRC

6527

2009

APPEAL NUMBER:

2013

DATE DELIVERED::

13 June 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Thackray, Ryan and Aldridge JJ

HEARING DATE:

27 May 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

14 October 2013

LOWER COURT MNC:

[2013] FamCA 913

REPRESENTATION

FOR THE APPELLANT:

Mr Kettle appeared in person

COUNSEL FOR THE RESPONDENT:

Ms Ellis

SOLICITOR FOR THE RESPONDENT:

Burchill & Horsey Lawyers

Orders

The appellant’s application in an appeal filed on 17 March 2014 be dismissed.
The appellant’s appeal NA 62 of 2013 against the orders of the Honourable Justice Cleary made on 14 October 2013 be dismissed.
The appellant father pay the respondent mother’s costs of and incidental to the appeal, such costs to be agreed, or failing agreement, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym

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 & GREEN [2014] FamCAFC 98
Case: [2014] FamCAFC 98
Decision Date: 13 June 2014

CaseChat Overview and Summary

The father, as appellant, sought to appeal a decision made by the Family Court in relation to child support, parentage, and an injunction against initiating proceedings. The mother, as respondent, defended the decision and sought costs against the father. The father had previously completed a statutory declaration acknowledging the child as his, and after years of litigation, sought to challenge this acknowledgment after the child turned 18. The father also sought repayment of child support and relief under the Child Support Assessment Act 1989 (Cth). The mother argued that the father could not press for relief predicated upon a presumption of parentage arising from marriage, as the statutory declaration had already established parentage.

The court considered the validity of the statutory declaration, the presumption of parentage arising from findings of courts, and the father’s inability to press for relief under the s 69P presumption of parentage arising from marriage. The court also examined whether the order restraining the father from instituting proceedings was valid, and whether the decision of a superior court, even if in excess of jurisdiction, is valid unless and until it is set aside. The court found that the statutory declaration and findings of the Family Court were valid, and that the order restraining the father from instituting proceedings was also valid. The court dismissed the father's application and appeal, and found that no error had been established.

The court also considered the procedural fairness of the case, and found that no denial of procedural fairness had been established. The court examined the rules for filing a response electronically, and found that no error had been established in this regard. The court dismissed the appeal and found that the father should pay the mother's costs of the appeal. The court ordered that the father's application in the appeal filed on 17 March 2014 be dismissed, and that his appeal against the orders of the Family Court be also dismissed. The court further ordered that the father pay the mother's costs of and incidental to the appeal, such costs to be agreed, or failing agreement, as assessed.

Orders

Orders of the court

The appellant’s application in an appeal filed on 17 March 2014 be dismissed.

The appellant’s appeal NA 62 of 2013 against the orders of the Honourable Justice Cleary made on 14 October 2013 be dismissed.

The appellant father pay the respondent mother’s costs of and incidental to the appeal, such costs to be agreed, or failing agreement, as assessed.

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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