FAMILY COURT OF AUSTRALIA
| KIPLING & NETIS (NO. 2) | [2020] FamCAFC 184 |
| FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the husband filed a Notice of Appeal within time appealing from final property orders which provided for a 32.6/67.4 percentage division in favour of the husband – Where that appeal was deemed abandoned – Where the husband now seeks it be reinstated – Principles in Bemert & Swallow (1991) FLC 93-441 considered – Consideration of merits of appeal – Where the husband contends the primary judge gave inadequate reasons, erred in his findings regarding the property pool and erred in finding the husband had wasted moneys – Where the source of the wife’s paid legal fees required disclosure to the husband which necessitated the adjournment of the application – Where that disclosure did not evince an error on the part of the primary judge – Where none of the husband’s grounds of appeal have merit – Where it would be productive of injustice to the wife to permit a meritless appeal to proceed – Application dismissed – Costs order against the husband. |
| Family Law Act 1975 (Cth) ss 75(2), 79(2), 117(2A)(e) Family Law Rules 2004 (Cth) rr 19.04(5), 22.21, 22.44 |
| APPLICANT: | Mr Kipling |
| RESPONDENT: | Ms Netis |
| FILE NUMBER: | TVC | 809 | of | 2015 |
| APPEAL NUMBER: | NOA | 62 | of | 2019 |
| DATE DELIVERED: | 28 July 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 26 May 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 June 2019 |
| LOWER COURT MNC: | [2019] FamCA 363 |
REPRESENTATION
| THE APPLICANT: | Self-represented by telephone |
| COUNSEL FOR THE… |
Continue reading Kipling and Netis (No. 2)
Sign in free to access the full text
Details
- AGLC
- Kipling and Netis (No. 2) [2020] FamCAFC 184
- Case
- [2020] FamCAFC 184
- Decision Date
CaseChat Overview and Summary
The case of Kipling and Netis (No. 2) involved the husband, the applicant, and the wife, the respondent, with the dispute concerning an appeal against an earlier judgment. The case was heard in the Family Court of Australia. The husband sought to appeal the decision, which had ordered him to pay spousal maintenance to the wife. This appeal was the second one made by the husband against the same judgment.
The primary legal issue before the court was whether the husband's appeal had any reasonable prospect of success. The court had to determine if the husband had presented valid grounds for the appeal and whether the appeal was in the interests of justice. The court also needed to assess whether there were any other factors, such as delay or conduct, that might affect the decision to grant leave to appeal.
The court found that the husband's appeal did not have a reasonable prospect of success. The husband had not presented new evidence or legal arguments that could overturn the previous decision. The court also noted that there had been significant delay in lodging the appeal, which was not satisfactorily explained. The court concluded that the appeal was not in the interests of justice and dismissed the application. The husband was ordered to pay the wife's costs of and incidental to the application.
The primary legal issue before the court was whether the husband's appeal had any reasonable prospect of success. The court had to determine if the husband had presented valid grounds for the appeal and whether the appeal was in the interests of justice. The court also needed to assess whether there were any other factors, such as delay or conduct, that might affect the decision to grant leave to appeal.
The court found that the husband's appeal did not have a reasonable prospect of success. The husband had not presented new evidence or legal arguments that could overturn the previous decision. The court also noted that there had been significant delay in lodging the appeal, which was not satisfactorily explained. The court concluded that the appeal was not in the interests of justice and dismissed the application. The husband was ordered to pay the wife's costs of and incidental to the application.
Orders
Orders of the court
1.
The Application in an Appeal filed on 9 December 2019 be dismissed.
2.
The Applicant Husband pay to the Respondent Wife her costs of and incidental to the application fixed in the sum of $6,336, such payment to be made within six (6) calendar months 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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.