Kingston & Field - [2020] FamCAFC 171

FAMILY COURT OF AUSTRALIA

KINGSTON & FIELD

[2020] FamCAFC 171

FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT – LEAVE TO APPEAL – Where the applicant husband appealed against a conditional interlocutory stay order – Where the husband failed to file the Draft Appeal Index in the prescribed time – Appeal deemed abandoned – Delay explained – Where it would be futile to reinstate the appeal – Where leave is required if the order is interlocutory – Where the grounds fail to raise sufficient doubt to warrant the grant of leave – Application dismissed.

Civil Procedure Act 2005 (NSW)
Family Law Act 1975 (Cth) ss 75(2), 94AA
Judicial Officers Act 1986 (NSW) s 3
Uniform Civil Procedure Act 2005 (NSW)

Family Law Rules 2004 (Cth) Sch 3, r 22.13(2)

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Rand & Rand [2009] FamCAFC 88
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24

APPLICANT:

Mr Kingston

RESPONDENT:

Ms Field

FILE NUMBER:

PAC

2095

2014

APPEAL NUMBER:

EAA

2020

DATE DELIVERED:

17 July 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney (via video link)

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

14 July 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

30 April 2020

LOWER COURT MNC:

[2020] FamCA 303

REPRESENTATION

APPLICANT:

Mr Kingston (Litigant in person)

SOLICITOR FOR THE RESPONDENT:

Matthews Folbigg Lawyers

Orders

The application to reinstate Appeal EAA 62 of 2020 against the orders of a judge of the Family Court made on 30 April 2020 is dismissed.
The applicant husband pay the respondent wife’s costs of and incidental to the application in the sum of $3,300 within 42 days of the date of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kingston & Field has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EAA 62 of 2020
File Number: PAC 2095 of 2014

Mr Kingston

Applicant

And

Ms Field

Respondent

REASONS FOR JUDGMENT

On 30 April 2019, a judge of the Family Court made orders granting Mr Kingston (“the husband”) a stay of final property settlement orders made on 21 November 2019 in proceedings between him and Ms Field (“the wife”) pending the husband’s appeal against those…

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 Kingston & Field

Details

AGLC: Kingston & Field [2020] FamCAFC 171
Case: [2020] FamCAFC 171
Decision Date: 17 July 2020

CaseChat Overview and Summary

Kingston & Field was a case in which the applicant sought to reinstate an appeal that had been dismissed by the Family Court. The applicant, the husband, sought to appeal against the orders made by a judge of the Family Court on 30 April 2020. The respondent, the wife, opposed the application to reinstate the appeal. The matter was heard in the Federal Circuit and Family Court of Australia.

The legal issues before the court included whether the application to reinstate the appeal was made within the appropriate time frame and whether there were any grounds upon which the appeal could be reinstated. The court had to consider the relevant rules of court and any relevant case law in determining whether the application should be successful.

The court found that the application to reinstate the appeal was not made within the appropriate time frame and that there were no grounds upon which the appeal could be reinstated. The court found that the applicant had not demonstrated any error or irregularity that would justify the appeal being reinstated. The court also found that the applicant had not provided any evidence to support his application. The court dismissed the application to reinstate the appeal and ordered the applicant to pay the respondent’s costs of and incidental to the application.

Orders

Orders of the court

The application to reinstate Appeal EAA 62 of 2020 against the orders of a judge of the Family Court made on 30 April 2020 is dismissed.

The applicant husband pay the respondent wife’s costs of and incidental to the application in the sum of $3,300 within 42 days of the date of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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