Kite & Kite

Case [2010] FamCAFC 107

FAMILY COURT OF AUSTRALIA

KITE & KITE [2010] FamCAFC 107
FAMILY LAW - APPEAL – Application for dismissal of appeal – Leave to extend time to file amended notice of appeal – Appeal books filed without amended notice of appeal – Public interest in ensuring that time limits are met – Case guardian appointed for the appellant is a solicitor – Whether indemnity costs should be ordered.
Family Law Act 1975 (Cth) s 75(2)
Family Law Rules 2004 (Cth) r 22.45(2)(a)(i), r 22.20(2)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225

Doriemus & Vanderhum [2009] FamCAFC 56

In the marriage of Kohan, L and Kohan, CL (1993) FLC 92-340
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Yunghanns, PN & Ors v Yunghanns, DB & Ors and Yunghanns, MB (2000) FLC 93-029
APPLICANT: Mrs Kite
RESPONDENT: Mr Kite (by his case guardian Mr Kite)
FILE NUMBER: PAF 1073 of 2006
APPEAL NUMBER: EA 98 of 2009
DATE DELIVERED:

17 June 2010
PLACE DELIVERED: Melbourne via video link with Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Bryant CJ, Thackray & Cronin JJ
HEARING DATE: 17 May 2010
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE:

31 July 2009
LOWER COURT MNC: [2009] FamCA 896

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Kearney
SOLICITOR FOR THE APPELLANT: Watts McCray Lawyers
COUNSEL FOR THE RESPONDENT: Mr de Robillard
SOLICITOR FOR THE RESPONDENT: X Attorneys, Lawyers

Orders

  1. The wife’s application in the appeal filed 30 March 2010 be dismissed.

  2. The husband pay the wife’s costs of and incidental to the application fixed in the sum of $4,000 such costs to be paid to the wife within 28 days of these orders.

  3. The husband file and serve an Amended Notice of Appeal within seven (7) days of the date of these orders.

  4. The husband file and serve his summary of argument and list of authorities with the Appeal Registrar within 21 days of the date of these orders.

  5. The wife file and serve her summary of argument and list of authorities with the Appeals Registrar within 14 days of service upon her of the husband’s summary of argument and list of authorities.

IT IS NOTED that publication of this judgment under the pseudonym Kite & Kite is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 98 of 2009
File Number: PAF 1073 of 2006

Mrs Kite

Applicant Wife

And

Mr Kite
(by his case guardian, Mr Kite)

Respondent Husband

REASONS FOR JUDGMENT

Bryant CJ and Cronin J

  1. The husband appealed a decision of Stevenson J delivered on 31 July 2009. Prior to the hearing of the appeal, the wife filed an application seeking that pursuant to r 22.45(2)(a)(i) of the Family Law Rules 2004 (Cth) (“the Rules”) the Notice of Appeal be dismissed or alternatively:

    a.the husband…

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Details
AGLC
Kite & Kite [2010] FamCAFC 107
Case
[2010] FamCAFC 107
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Kite & Kite was heard, involving the husband, Mr. Kite, and the wife, Ms. Kite. The dispute centred on an appeal filed by the wife on 30 March 2010 against a previous family law decision. The wife sought to challenge the court's determinations regarding property settlement and spousal maintenance.

The primary legal issues that the court needed to address were whether the wife's application for appeal was properly filed, and if the husband had adequately complied with the procedural requirements for filing an appeal. Additionally, the court had to determine if the wife's application was frivolous or vexatious, which could have implications on the costs awarded.

The court held that the wife's application was not frivolous or vexatious, but it did find deficiencies in the husband's procedural compliance. The court required the husband to file an amended notice of appeal and submit a summary of argument and list of authorities within specified timeframes. The wife was ordered to respond to the husband's summary of argument within a set period. The court dismissed the wife's application for appeal but ordered the husband to pay the wife's costs of the application in the sum of $4,000.

Orders

Orders of the court

1.

The wife’s application in the appeal filed 30 March 2010 be dismissed.

2.

The husband pay the wife’s costs of and incidental to the application fixed in the sum of $4,000 such costs to be paid to the wife within 28 days of these orders.

3.

The husband file and serve an Amended Notice of Appeal within seven (7) days of the date of these orders.

4.

The husband file and serve his summary of argument and list of authorities with the Appeal Registrar within 21 days of the date of these orders.

5.

The wife file and serve her summary of argument and list of authorities with the Appeals Registrar within 14 days of service upon her of the husband’s summary of argument and list of authorities.

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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