Kerwitz & Kerwitz [2018] FamCAFC 263 (20 December 2018)

Last Updated: 10 January 2019

FAMILY COURT OF AUSTRALIA

KERWITZ & KERWITZ

[2018] FamCAFC 263

FAMILY LAW – APPEAL – Where the Notice of Appeal fails to demonstrate appealable error by the Magistrate – Where the Magistrate quite properly acted on the basis that the orders she was asked to make were by consent – Where the Magistrate took some time to work through many of the orders she was being asked to make to satisfy herself that they were appropriate – Where the wife did not want an opportunity to obtain further legal advice given her financial circumstances – Where the wife had received legal advice that the matters she was raising were not matters that could be pursued on appeal – Appeal dismissed.

Family Law Act 1975 (Cth)

APPELLANT:

Ms Kerwitz

RESPONDENT:

Mr Kerwitz

FILE NUMBER:

PTW

5411

of

2018

APPEAL NUMBER:

WEA

27

of

2018

DATE DELIVERED:

20 December 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

20 December 2018

REPRESENTATION

THE APPELLANT:

In Person

THE RESPONDENT:

In person

ORDER

(1) The Notice of Appeal filed on 27 August 2018 be dismissed.

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 Kerwitz & Kerwitz 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: WEA 27 of 2018
File Number: PTW 5411 of 2015

Ms Kerwitz

Appellant

And

Mr Kerwitz

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a directions hearing in relation to a Notice of Appeal filed by Ms Kerwitz (“the wife”) on 27 August 2018 against consent orders made by Magistrate Andrews on 31 July 2018.
2. Both the wife and Mr Kerwitz (“the husband”) appear today without legal representation.
3. I have raised with the wife that the Notice of Appeal fails to demonstrate any appealable error by the Magistrate, and to put that into context, and to repeat, the orders appealed against are consent orders. They were made on 31 July 2018 and cover issues of property settlement, spousal maintenance and child support.
4. At the hearing before the Magistrate both parties were represented, and I note in particular the wife was represented.
5. The grounds of appeal relied on by the wife in her Notice of Appeal are as follows:
   1. This order didn’t consider my disability and health status that effect my future ability to obtain a permanent job and substational income to support my daughter and myself.
   2. This order didn’t consider my contribution to [the husband’s] business and care to his extanded family as well as our family.
   3. This order didn’t consider all the evidents shows [the husband’s] credabilities and how I can’t relay on his say.
   4. This order didn’t consider [the husband’s] real finance situation, [the husband’s] real income and real potential for future income.

5. I didn’t want to sign this concent order and was under pressure.
(Errors and omissions as per original)

6. However, as I have explained to the wife, none of those matters demonstrate appealable error by the Magistrate.
7. The Magistrate quite properly acted on the basis that the orders she was being asked to make were by consent, and her Honour took some time, as is apparent from the transcript, to work through many of the orders being made to satisfy herself, where necessary, that the orders were appropriate. I instance in particular the orders made by way of child support.
8. Unfortunately, on that basis, the appeal must be dismissed.
9. I raised with the wife whether she wanted the opportunity to obtain some further legal advice about her appeal, and she has indicated that she did not for two reasons. First, she does not have sufficient finances to do that, and secondly, and importantly for the outcome of this appeal, the wife says that she was provided some advice by a Community Legal Service that the matters she was raising were not matters that she could pursue on appeal. They may of course be matters that she has the ability to pursue elsewhere, but that is entirely up to the wife to decide what she does about that. Obviously I cannot make any comment as to that.
10. In summary then, although I am sympathetic to the wife’s position, given that the Notice of Appeal fails to raise any appealable error by the Magistrate in making the consent orders, I have no alternative but to dismiss the Notice of Appeal.

I certify that the preceding ten (10) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 20 December 2018.



Associate:

Date: 21 December 2018