FAMILY COURT OF AUSTRALIA
| A BANK & COLEIRO AND ANOR | [2011] FamCAFC 157 |
| FAMILY LAW - APPEAL – where the Federal Magistrate made an order joining the bank to the property settlement proceedings between the husband and wife – where there was no application before the Federal Magistrate seeking that the bank be joined as a party to the proceedings – where the bank was not given notice of the proposed joinder order, or the opportunity to make submissions in relation to the proposed joinder order – appealable error found – appeal allowed – order set aside. FAMILY LAW - APPEAL – where the Federal Magistrate made an order which purported to relieve the husband and wife from compliance with the provisions of s 121 of the Family Law Act 1975 (Cth) – where there was no application before the Federal Magistrate seeking such an order – where the Federal Magistrate did not provide the opportunity for the bank to be heard prior to the making of the order – where the Federal Magistrate failed to give reasons for the making of the order – appealable error found – appeal allowed – order set aside. FAMILY LAW - APPEAL – where the Federal Magistrate made an order that the bank provide further material to the Court – where it was argued that the bank should not have to disclose further material to the Court until the determination of the bank’s application for summary dismissal of the wife’s amended application was determined – appeal allowed – order set aside. FAMILY LAW - CONTEMPT – in face of the Court – observations made concerning the Federal Magistrate’s use of the contempt procedure against the husband. |
| Family Law Act 1975 (Cth) s 35, s 112AP, s 121 Family Court Rules 2004 r 6.02, r 21.08 Federal Magistrates Act 1999 (Cth) s 17 Federal Magistrates Court Rules 2001 r 11.01, r 11.02, r 19.01 High Court Rules 2004 r 11.01.2 |
| AGF & LLS (2005) FLC 93-210 Bande & Cade [2011] FamCAFC 93 Bienstein & Bienstein [2001] FamCA 349 Clampett v Attorney-General (Cth) (2009) 260 ALR 462 Coward v Stapleton (1953) 90 CLR 573 Fraser v The Queen [1984] 3 NSWLR 212 Kendling and Anor & Kendling (Contempt) (2008) FLC 93-384 LGM & CAM (Contempt) (2008) FLC 93-355 Lewis v Judge Ogden (1984) 153 CLR 682 Rich v Attorney-Genera for the State of Victoria [1999] VSCA 14 Tate & Tate (2002) FLC 93-107 Wayne & Dillon & Anor [2008] FamCAFC 204 Witham v Holloway (1995) 183 CLR 525 |
| APPELLANT: | A Bank |
| 1ST RESPONDENT: | Ms Coleiro |
| 2ND RESPONDENT: | Mr Coleiro |
| FILE NUMBER: | PAC | 821 | of | 2011 |
| APPEAL NUMBER: | EA | 77 | of | 2011 |
| DATE DELIVERED: | 2 August 2011 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Finn and Strickland JJ |
| HEARING DATE: | 11 July 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT ORDERS DATE: | 21 April 2011 and 14 June 2011 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lethbridge SC and Ms Barker |
| SOLICITOR… |
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- AGLC
- A Bank & Coleiro [2011] FamCAFC 157
- Case
- [2011] FamCAFC 157
- Decision Date
CaseChat Overview and Summary
The legal issues at the heart of the appeals were whether the Federal Magistrate had the authority to join the bank to the proceedings without an application, and whether the bank was given adequate notice and an opportunity to be heard. Furthermore, the court examined if the Federal Magistrate's order relieving the parties from compliance with section 121 was valid, and if the requirement for the bank to provide further material was justified. The court found that the Federal Magistrate had erred in each instance, leading to the setting aside of the orders.
In setting aside the orders, the court emphasised that procedural fairness was not observed in the joinder of the bank, the lack of an application for the order relieving compliance with section 121, and the failure to give reasons for that order. The court also noted that the bank should not be required to provide further material until its application for summary dismissal was determined. Consequently, the court allowed the appeals, set aside the orders, and directed that the proceedings be continued before a different Federal Magistrate. Additionally, the court granted costs certificates to both the appellant and the first respondent, indicating that the Attorney-General may authorise payments for the costs incurred in relation to the appeals.
Orders
Orders of the court
1.
(a) There be leave to appeal Order 6 of the orders made on 21 April 2011.
(b) The appeal against that order be allowed.
(c) The order be set aside.
2.
(a) There be leave to appeal Order 5 of the orders made on 14 June 2011.
(b) The appeal against that order be allowed.
(c) The order be set aside.
3.
(a) The appeal against Order 9 of the orders made on 14 June 2011 be
allowed.
(b) The order be set aside.
4.
The hearing of the proceedings between the wife and the husband be continued before a Federal Magistrate other than Federal Magistrate Harman.
5.
There be no order for costs in relation to the appeals initiated by the Notice of Appeal filed 27 June 2011.
6.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the appellant in respect of the costs incurred by them in relation to the appeals initiated by the Notice of Appeal filed 27 June 2011.
7.
The Court grants to the first respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the first respondent in respect of the costs incurred by her in relation to the appeals initiated by the Notice of Appeal filed 27 June 2011.
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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