Redmond & Redmond - [2014] FamCAFC 87

FAMILY COURT OF AUSTRALIA

REDMOND & REDMOND AND ORS

[2014] FamCAFC 87

FAMILY LAW – APPEAL – PROCEDURE – where the appellant was declared bankrupt subsequent to the institution of the appeal – where the appeal concerns a decision of a Federal Circuit Court judge to dismiss an appeal by the appellant from a decision of the Social Security Appeals Tribunal in respect of the appellant’s child support assessment – where the trustee in bankruptcy has elected, pursuant to s 60 of the Bankruptcy Act 1966 (Cth) to discontinue the appeal – where the appellant applies to continue the appeal in his own name on the basis that the appeal falls within the exception contained in s 60(4) of the Bankruptcy Act 1966 (Cth) – where at the hearing of the application by the appellant to proceed with the appeal in his own name, the appellant made an oral application for an adjournment – where the appellant seeks the adjournment to allow an appeal against the decision of the trustee in bankruptcy to discontinue this appeal, together with five other appeals currently before the Federal Circuit Court, to be commenced and determined in the Federal Court – whether the adjournment is in the interests of justice – where the proceedings in the Federal Court would determine not only the application in this appeal for the appellant to proceed in his own name, but would also determine whether five other appeals in the Federal Circuit Court ought proceed – where, if the Federal Court determines the trustee in bankruptcy did not have the power to discontinue the proceedings, the appellant could apply to reinstate the appeal – where, in those circumstances, the application for an adjournment and the appellant’s application in an appeal to proceed in his own name ought be dismissed – orders made dismissing those applications – no order as to costs.

Bankruptcy Act 1966 (Cth)

APPELLANT:

Mr Redmond

FIRST RESPONDENT:

Ms Redmond

SECOND RESPONDENT:

Child Support Registrar

THIRD PARTY:

Official Trustee in Bankruptcy

FILE NUMBER:

BRC

4493

2011

APPEAL NUMBER:

2013

DATE DELIVERED::

11 April 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Ainslie-Wallace, Murphy JJ

HEARING DATE:

11 April 2014

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

28 June 2013

LOWER COURT MNC:

[2013] FCCA 638

REPRESENTATION

THE APPELLANT:

Self Represented

THE 1ST RESPONDENT:

Self Represented

COUNSEL FOR THE 2ND RESPONDENT:

Dr Brasch

SOLICITOR FOR THE 2ND RESPONDENT:

Australian Government Solicitor

SOLICITOR FOR THE THIRD PARTY:

Mr Muller of Rodgers Barnes & Green

Orders

The husband’s oral application for an adjournment of his application filed 24 March 2014 be dismissed.
The application in an appeal filed 24 March 2014 “that the Appellant be allowed to continue the appeal pursuant to section 60(4) of the Bankruptcy Act 1966 (Cth) (i.e. that the Trustee in Bankruptcy does not hold jurisdiction in these proceedings)” be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym

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.

Continue reading Redmond & Redmond

Details

AGLC: Redmond & Redmond [2014] FamCAFC 87
Case: [2014] FamCAFC 87
Decision Date: 11 April 2014

CaseChat Overview and Summary

The case of Redmond & Redmond was heard in the Federal Circuit Court of Australia. The husband brought an application for an adjournment of his appeal against the bankruptcy of his wife. The wife, the respondent, opposed the application. The central dispute was whether the husband had a valid ground to continue the appeal against the bankruptcy proceedings.

The court was required to determine whether the husband had established a valid reason for an adjournment of his appeal. Additionally, it needed to decide whether the husband could continue the appeal against the bankruptcy decision without the jurisdiction of the Trustee in Bankruptcy. The court had to consider the relevant statutory provisions and assess the merits of the husband's application.

The court dismissed the husband’s application for an adjournment. It found that the husband had not provided sufficient grounds to justify an adjournment of the appeal. The court also dismissed the husband's application to continue the appeal without the jurisdiction of the Trustee in Bankruptcy. It concluded that the Trustee in Bankruptcy held the necessary jurisdiction to proceed with the bankruptcy proceedings.

The final orders of the court were that the husband’s application for an adjournment of his appeal filed on 24 March 2014 be dismissed. Furthermore, the court dismissed the husband’s application that the Trustee in Bankruptcy did not hold jurisdiction in these proceedings.

Orders

Orders of the court

1. The husband’s oral application for an adjournment of his application filed 24 March 2014 be dismissed.

2. The application in an appeal filed 24 March 2014 “that the Appellant be allowed to continue the appeal pursuant to section 60(4) of the Bankruptcy Act 1966 (Cth) (i.e. that the Trustee in Bankruptcy does not hold jurisdiction in these proceedings)” be dismissed.

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.