Kovacs and Graham and Anor - [2016] FamCAFC 172

FAMILY COURT OF AUSTRALIA

KOVACS & GRAHAM AND ANOR

[2016] FamCAFC 172

FAMILY LAW – APPEAL – PROCEDURE – Application to review Appeals Registrar’s orders – Application for Appeals Registrar to prepare appeal books – Application to reinstate abandoned appeals – Where the application was filed out of time – Where the appeals were deemed abandoned by reason of the application not able to be listed before the due date to file the appeal books – Where the appellant sought in his application to the Appeals Registrar that the Independent Children’s Lawyer prepare the appeal books – Where the appellant failed to provide adequate evidence before the Appeals Registrar – Where the Appeals Registrar’s decision was correct to refuse that application – Where on application to the Full Court the appellant was able to demonstrate exceptional hardship per Xuarez & O’Halloran & Anor [2013] FamCAFC 13 – Extension of time to file the application granted – Leave to review the Appeal Registrar’s orders allowed in part – The Appeals Registrar will prepare the appeal books on the appellant’s behalf – Where the issue of transcripts has been reserved to the Full Court – Where the issue of costs is reserved to the Full Court.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 22.18(2)(b), 22.40, 22.44

Bele & Vaughan (No.2) [2012] FamCAFC 125
Harris v Caladine (1991) 172 CLR 84
Wellington & Child Support Registrar [2012] FamCAFC 34
Xuarez & O’Halloran & Anor [2013] FamCAFC 13

APPLICANT:

Mr Kovacs

RESPONDENT:

Ms Graham

INDEPENDENT CHILDREN’S LAWYER:

Susan Gray

FILE NUMBER:

CSC

762

2010

APPEAL NUMBER:	NA	62	of	2015
NA	87	of	2015
NA	4	of	2016
NA	14	of	2016
NA	15	of	2016

DATE DELIVERED:

1 September 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

1 September 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

21 October 2015, 10 December 2015, 3 February 2016, 11 February 2016

LOWER COURT MNC:

[2015] FamCA 1073; [2015] FamCA 900; [2015] FamCA 1115

REPRESENTATION

THE APPELLANT:

Mr Kovacs (in person)

THE RESPONDENT:

Ms Graham (in person)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Susan Gray

Orders

The appeals NA62 of 2015, NA87 of 2015, NA4 of 2016, NA14 of 2016 and NA15 of 2016 are reinstated.
That paragraphs (3) and (4) of the Amended Application in an Appeal filed by the applicant on 15 August 2016 to review the Appeal Registrar’s orders of 7 July 2016 are allowed in part.
That Orders (4) – (8) of the Orders made by Registrar Kane on 7 July 2016 be discharged
The Regional Appeals Registrar shall prepare the appeal books in accordance with the settled index in appeals NA62 of 2015, NA87 of 2015, NA4 of 2016, NA14 of 2016 and NA15 of 2016 and deliver the same to the parties by Friday 25 November 2016.
It is further directed that:
(a)The Appellant file…

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

Case: [2016] FamCAFC 172
Decision Date: 1 September 2016

CaseChat Overview and Summary

The matter before the court involved appeals by Kovacs against Graham and another, with several appeals being heard together. The disputes pertained to family law matters, specifically child-related issues. The Federal Circuit and Family Court of Australia was tasked with reviewing the orders made by the Appeal Registrar and determining the appropriate course of action regarding the appeals.

The central legal issues before the court were whether the appeals should be reinstated and, if so, what steps should be taken to proceed with the appeals. Additionally, the court needed to determine the appropriate deadlines for filing summaries of argument and lists of authorities by the parties involved.

In its decision, the court reinstated the appeals and allowed certain parts of the amended application. The orders made by the Appeal Registrar were discharged, and the Regional Appeals Registrar was directed to prepare the appeal books and deliver them to the parties. The court also set specific deadlines for the appellant, respondent, and Independent Children’s Lawyer to file and serve their summaries of argument and lists of authorities. The issue of costs was reserved for the Full Court to decide.

The court's orders included the reinstatement of the specified appeals, the allowance of parts of the amended application, the discharge of certain orders, and the setting of deadlines for the filing of further documents. The issue of costs was deferred to the Full Court.

Orders

Orders of the court

The appeals NA62 of 2015, NA87 of 2015, NA4 of 2016, NA14 of 2016 and NA15 of 2016 are reinstated.

That paragraphs (3) and (4) of the Amended Application in an Appeal filed by the applicant on 15 August 2016 to review the Appeal Registrar’s orders of 7 July 2016 are allowed in part.

That Orders (4) – (8) of the Orders made by Registrar Kane on 7 July 2016 be discharged

The Regional Appeals Registrar shall prepare the appeal books in accordance with the settled index in appeals NA62 of 2015, NA87 of 2015, NA4 of 2016, NA14 of 2016 and NA15 of 2016 and deliver the same to the parties by Friday 25 November 2016.

It is further directed that:

(a) The Appellant file and serve the Summary of Argument and List of Authorities upon which he wishes to rely in respect of appeals NA62 of 2015, NA87 of 2015, NA4 of 2016, NA14 of 2016 and NA15 of 2016 by 4.00pm on Friday 20 January 2017.

(b) That the Respondent file and serve the Summary of Argument and List of Authorities upon which she wishes to rely in respect of appeals NA62 of 2015, NA87 of 2015, NA4 of 2016, NA14 of 2016 and NA15 of 2016 by 4.00pm on Friday 24 February 2017.

(c) That the Independent Children’s Lawyer file and serve the Summary of Argument and List of Authorities upon which they wish to rely in respect of appeals NA62 of 2015, NA87 of 2015, NA4 of 2016, NA14 of 2016 and NA15 of 2016 by 4.00pm on Friday 24 March 2017.

The issue of costs is reserved to the Full Court.

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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