Kipling & Netis - [2020] FamCAFC 79

FAMILY COURT OF AUSTRALIA

KIPLING & NETIS

[2020] FamCAFC 79

FAMILY LAW – APPLICATION IN AN APPEAL – ADJOURNMENT – Where the husband filed an Application in an Appeal to adjourn the hearing of his Application to reinstate his appeal – Where the husband’s legal representatives withdrew just prior to the hearing date – Where the husband seeks documents pertaining to the wife’s payment of legal fees which he contends are critical to his appeal – Where the wife initially agreed to provide those documents but subsequently withdrew her agreement – Where the wife now consents to produce those documents – Where the parties ought be permitted to provide further written submissions – Where the circumstances of the case justify an adjournment of the hearing.

Family Law Act 1975 (Cth) s 93A(2)

Family Law Rules 2004 (Cth) rr 8.04, 13.07A, 15.76, 19.04, 22.21

Duarte & Morse [2018] FamCAFC 69
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Sadek & Hall (2015) FLC 93-634; [2015] FamCAFC 23

APPLICANT:

Mr Kipling

RESPONDENT:

Ms Netis

FILE NUMBER:

TVC

809

2015

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

8 April 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

24 March 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 via telephone

COUNSEL FOR THE RESPONDENT:

Mr Lake via telephone

SOLICITOR FOR THE RESPONDENT:

Roberts Nehmer McKee Solicitors

Orders Made on 24 March 2020

IT IS ORDERED BY CONSENT:

The respondent wife produce to the applicant husband the following documents by 4.00pm on 27 March 2020:
(a)A complete Trust Account Statement from the date of the commencement of the Respondent wife’s solicitor’s instructions from the respondent wife to the date of providing that Statement to the Applicant husband;
(b)Copies of all Invoices sent by the Respondent wife’s solicitors to the Respondent wife;
(c)Copies of all Receipts issued by the Respondent wife’s solicitors to the Respondent wife;
(d)Copies of all Invoices and Receipts issued to or received by the Respondent wife’s solicitors for work or matters usually described as “outgoings” undertaken on behalf of the Respondent wife from the date of commencement of their instructions from the Respondent wife to the date of providing those documents to the Applicant husband;
(e)Copies of all Invoices and Receipts issued to or received by the Respondent wife’s solicitors from any and all Counsel engaged by the Respondent wife’s solicitors on behalf of the Respondent wife from the date of commencement of their instructions from the Respondent wife to the date of providing those documents to the Applicant husband;
(f)Confirmation of the value of all outstanding and unpaid “Work in Progress” undertaken by the Respondent wife’s solicitors on behalf of the Respondent wife as at the date of providing the documents to the Applicant husband; and
(g)Confirmation from the Respondent wife’s solicitors of any debt or outstanding monies owed by the Respondent wife to…

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 79
Case: [2020] FamCAFC 79
Decision Date: 8 April 2020

CaseChat Overview and Summary

Mr Kipling, the husband, filed an Application to reinstate his appeal against the final property adjustment orders made by the Family Court of Australia. The appeal was deemed abandoned due to the husband's failure to file and serve the Appeal Book by 29 November 2019. The husband filed an Application in an Appeal to reinstate the appeal and an Application in an Appeal for an adjournment on 9 December 2019 and 23 March 2020 respectively. These applications were heard on 24 March 2020 and further Orders were made on 30 March 2020.

The legal issues the court had to decide included whether the husband should be granted an adjournment of the hearing, whether the wife should be required to disclose certain documents relating to her payment of legal fees and the source of those funds, and whether the husband should be allowed to file further written submissions. The husband contended that the documents he sought were critical to his appeal, particularly as they pertained to the wife's ability to pay legal fees. The wife initially agreed to provide the documents but subsequently withdrew her agreement. However, she later consented to producing the documents on the condition that the husband be restrained from using them in any other litigation. The wife also opposed an order requiring her to disclose the source of the funds used to pay her legal fees, but the court found that the information was already known to the husband as neither party had complied with the relevant rules at trial.

The court found that the circumstances of the case justified an adjournment of the hearing, as the husband had recently become self-represented and the wife had only recently consented to produce the documents. The court also found that the husband should be allowed to file further written submissions, and that the wife should be required to disclose the source of the funds used to pay her legal fees.

The court made several orders on 24 March 2020, which were later modified on 30 March 2020. The wife was ordered to produce certain documents to the husband by 27 March 2020, and to provide a statement specifying the source of funds for the costs paid or to be paid by her. The husband was restrained from using the documents for any purpose other than the prosecution of the Application in an Appeal. The husband was granted leave to file written submissions by 14 April 2020, and the wife was granted leave to file written submissions in response by 21 April 2020. The hearing of the Application in an Appeal was adjourned to 30 April 2020, and the parties were granted leave to appear via telephone. The wife's costs of and incidental to the hearing on 24 March 2020 were reserved.

Orders