King & King

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.