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King & King

King & King

Case [2023] FedCFamC1A 36 28 March 2023

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
King & King [2023] FedCFamC1A 36

Appeal from: King & King(No 2) [2023] FedCFamC1F 45

Appeal number: NAA 45 of 2023

File number: MLC 9554 of 2011

Judgment of: AUSTIN J

Date of judgment: 28 March 2023

Catchwords: FAMILY LAW – APPEAL – Practice and procedure –Where the appeal was listed for the appellant to show cause why it should not be summarily dismissed for lack of any apparent prospects of success – Where the respondent filed a Response to an Application in an Appeal – Where the response is dismissed as incompetent because the appellant has not filed an Application in an Appeal – Where one of the six grounds of appeal has reasonable prospects of success – Where the appeal registrar shall fix the appeal for a procedural hearing.

Legislation:
Family Law Act 1975 (Cth) Pt VIII

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46

Transfer of Land Act 1958 (Vic)

Cases cited:
Commonwealth v Bank of NSW (1949) 79 CLR 497; [1949] UKPCHCA 1

Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91

House v The King (1936) 55 CLR 499; [1936] HCA 40

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Sadasivam & Seshan (2019) FLC 93-899; [2019] FamCAFC 76

Tudor & Tudor (1991) FLC 92-273; [1991] FamCA 89

Number of paragraphs: 40

Date of hearing: 24 March 2023

Place: Heard in Newcastle (via video link), delivered in Sydney

The Appellant: Litigant in person

Solicitor for the Respondent: Ian Robertson Legal
ORDERS

NAA 45 of 2023
MLC 9554 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR M KING

Appellant

AND:
MS KING

Respondent

order made by:

AUSTIN J

DATE OF ORDER:

28 March 2023

THE COURT ORDERS THAT:
1.The Response to an Application in an Appeal filed on 23 March 2023 is dismissed.
2.The appeal registrar shall fix the appeal for procedural hearing pursuant to r 13.16 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym King & King has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:

On 8 February 2023, a judge of the Federal Circuit and Family Court of Australia (Division 1) made orders to determine the financial cause between the parties pursuant to Pt…

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 King & King

Details

AGLC: King & King [2023] FedCFamC1A 36
Case: [2023] FedCFamC1A 36
Decision Date

CaseChat Overview and Summary

The appeal in King & King was heard by the Federal Circuit and Family Court of Australia Division 1 Appellate Jurisdiction. The appeal was brought by Mr King against the orders made by the primary judge in the financial cause between the parties. The appeal was listed for Mr King to show cause why it should not be summarily dismissed for lack of any apparent prospects of success. The wife filed a Response to an Application in an Appeal, which was dismissed as incompetent because Mr King had not filed an Application in an Appeal. The appeal could not be summarily dismissed because one of the six grounds of appeal had reasonable prospects of success. The court ordered the appeal registrar to fix the appeal for a procedural hearing.

The legal issues in this case were whether the appeal could be summarily dismissed for lack of any apparent prospects of success, and whether the Response to an Application in an Appeal filed by the wife was competent. The court had to consider the six grounds of appeal brought by Mr King and determine whether any of them had reasonable prospects of success. The court also had to consider the effect of the caveats registered over the property and the validity of the interim spousal maintenance order.

The court held that the appeal could not be summarily dismissed because Ground 4 had reasonable prospects of success. Ground 4 was a complaint that the whole of the proceedings before the primary judge were null because they were dismissed in 2012. However, an allied grievance about the validity of an interim spousal maintenance order was certainly arguable. The wife had failed to re-instate the proceedings within the time limit specified in the orders, which resulted in the formal dismissal of the proceedings. Upon dismissal of the proceedings, the interim spousal maintenance order was ipso facto discharged because interlocutory orders cannot subsist beyond the currency of the cause. However, the primary judge assumed the interim spousal maintenance order continued in operation until the trial in January 2023, at which time his Honour purported to discharge it.

The court dismissed the Response to an Application in an Appeal filed by the wife as incompetent because Mr King had not filed an Application in an Appeal. The court also held that the caveats registered over the property would not stultify the operation of the orders, as the primary judge had ordered the default sale of the property if Mr King fails to pay the wife $436,000 within 90 days. The wife would then have to proceed under the Transfer of Land Act 1958 (Vic) to remove the caveats from title, which may entail separate proceedings between her and the caveators. However, any such additional action does not prevent compliance with the appealed orders.

The court ordered the appeal registrar to fix the appeal for a procedural hearing pursuant to r 13.16 of the Federal Circuit and Family and Court of Australia (Family Law) Rules 2021 (Cth). Mr King is not legally represented so no question of costs arises.

Orders