KIPLING & NETIS - [2020] FamCAFC 269

FAMILY COURT OF AUSTRALIA

KIPLING & NETIS

[2020] FamCAFC 269

FAMILY LAW – APPEAL – EXTENSION OF TIME – Where there is no satisfactory explanation for the failure to file the Notice of Appeal within time – Where there is an adequate explanation for the delay in filing the application for an extension of time, noting that that delay was minimal – Where it cannot be said that the appeal has no chance of success – Where there is prejudice either way depending upon the result – Where the justice of the case requires that the application be allowed – Extension of time to file a Notice of Appeal granted.

Family Law Act 1975 (Cth)
Family Law Rules (2004) (Cth) r 1.14

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

APPLICANT:

Mr Kipling

RESPONDENT:

Ms Netis

FILE NUMBER:

TVC

809

2015

APPEAL NUMBER:

NOA

2020

DATE DELIVERED:

28 October 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide via telephone link

JUDGMENT OF:

Strickland J

HEARING DATE:

28 October 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

20 July 2020

LOWER COURT MNC:

[2020] FCCA 2852

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

Orders

The oral application made by the applicant father to adjourn the hearing today be dismissed.
The time for the applicant father to file and serve a Notice of Appeal against the Order made by a Judge of the Federal Circuit Court of Australia on 20 July 2020 be extended to the close of business on Wednesday 4 November 2020.
On or before the close of business on Monday 23 November 2020 the respondent mother file and serve an affidavit in support of her application for an order for security for costs, together with a financial statement.
On or before the close of business on Monday 30 November 2020 the applicant father file and serve an affidavit in response to the respondent mother’s application for an order for security for costs, together with a financial statement.
The application for an order for security for costs be listed for hearing before the Honourable Justice Strickland on Wednesday 2 December 2020 commencing at 10:00am (Queensland time) with a time estimate of two hours.

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 Kipling & Netis 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
ADELAIDE

Appeal Number: NOA 56 of 2020
File Number: TVC 809 of 2015

Mr…

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: KIPLING & NETIS [2020] FamCAFC 269
Case: [2020] FamCAFC 269
Decision Date: 28 October 2020

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Kipling & Netis involved a dispute between the father and the mother of a child. The father sought an adjournment of the hearing and an extension of time to appeal a previous order made by a Federal Circuit Court judge. The mother, in turn, applied for an order for security for costs, accompanied by a financial statement from both parties. The court addressed these issues, considering the father's request for an adjournment and the timelines for filing appeals and financial statements. Additionally, the court scheduled the hearing of the mother's application for security for costs.

The legal issues before the court included whether the father's application for an adjournment should be granted and if the time for filing an appeal and the accompanying financial statements should be extended. Furthermore, the court had to determine the procedural requirements for the mother's application for security for costs and set a date for the hearing of that application.

The court dismissed the father's application for an adjournment, finding no compelling reason to alter the scheduled hearing date. However, it granted an extension for the father to file and serve a Notice of Appeal, setting the deadline for this action to 4 November 2020. The court also required the mother to file and serve her affidavit and financial statement by 23 November 2020, with the father to respond by 30 November 2020. Finally, the court scheduled the hearing of the mother's application for security for costs for 2 December 2020, with a time estimate of two hours.

Orders

Orders of the court

The oral application made by the applicant father to adjourn the hearing today be dismissed.

The time for the applicant father to file and serve a Notice of Appeal against the Order made by a Judge of the Federal Circuit Court of Australia on 20 July 2020 be extended to the close of business on Wednesday 4 November 2020.

On or before the close of business on Monday 23 November 2020 the respondent mother file and serve an affidavit in support of her application for an order for security for costs, together with a financial statement.

On or before the close of business on Monday 30 November 2020 the applicant father file and serve an affidavit in response to the respondent mother’s application for an order for security for costs, together with a financial statement.

The application for an order for security for costs be listed for hearing before the Honourable Justice Strickland on Wednesday 2 December 2020 commencing at 10:00am (Queensland time) with a time estimate of two hours.

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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