Funar & Headley - [2022] FedCFamC1A 214

Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Funar & Headley [2022] FedCFamC1A 214

Appeal from: Funar & Headley [2022] FedCFamC2F 1018

Appeal number(s): NAA 188 of 2022

File number: BRC 14077 of 2020

Judgment of: MCCLELLAND DCJ, HENDERSON & HARPER JJ

Date of judgment: 19 December 2022

Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where final property orders and a declaration were made – Where the appellant challenged the primary judge’s reasons on 10 grounds – Where the first ground regarding procedural fairness was conceded by the second respondent – Appeal allowed by consent – Orders made by consent for the matter to be remitted for rehearing – Costs certificates granted for the appeal only.

Legislation:
Family Law Act 1975 (Cth) s 90XT(1)(a)

Federal Proceedings (Costs) Act 1981 (Cth)

Cases cited:
Berry & Andrews (2022) 65 Fam LR 183; [2022] FedCFamC1A 120

Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

House v The King (1936) 55 CLR 499; [1936] HCA 40

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

Number of paragraphs: 33

Date of hearing: Determined on the papers

Place: In Chambers

Counsel for the Appellant: Mr Kelly

Solicitor for the Appellant: Paddingtons Lawyers and Attorneys

The First Respondent: Filed Submitting Notice 10 October 2022

Counsel for the Second Respondent: Ms Murphy

Solicitor for the Second Respondent: Maven Lawyers
ORDERS

NAA 188 of 2022
BRC 14077 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS FUNAR

Appellant

AND:
MR HEADLEY

First Respondent

MRS HEADLEY

Second Respondent

order made by:

MCCLELLAND DCJ, HENDERSON & HARPER JJ

DATE OF ORDER:

19 DECEMBER 2022

THE COURT ORDERS BY CONSENT THAT:
1.The appeal be allowed.
2.Order 1, 2, 5 and 6 of the orders of the primary judge dated 3 August 2022 be set aside.
3.The matter be remitted for rehearing before a judge other than the primary judge.
4.The Court grants to the appellant a costs certificate pursuant to 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 that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
5.The Court grants to the second respondent a costs certificate pursuant to 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 respondent in respect of the costs incurred by the respondent in relation to the appeal.

AND THE COURT NOTES THAT:
A.The first respondent filed a Submitting Notice in respect of the appeal.
B.The first respondent has been advised of the proposed order…

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 Funar & Headley

Details

AGLC: Funar & Headley [2022] FedCFamC1A 214
Case: [2022] FedCFamC1A 214
Decision Date

CaseChat Overview and Summary

Funar and Headley involved a dispute before the Federal Court of Australia, where the central issue revolved around the validity of certain declarations and orders made by the primary judge. The appellant, Funar, contested the decisions rendered by the primary judge, arguing they were flawed and should be set aside. The second respondent, Headley, did not contest the appeal's success but conceded that the matter should be re-heard by a different judge. The court was required to determine whether the appeal was well-founded and, if so, whether the original declarations and orders should be annulled and the matter remitted for a new hearing.

The primary legal issue before the court was whether the primary judge's decisions were legally sound and correctly made. This involved a comprehensive review of the evidence, the application of relevant legal principles, and the assessment of whether any procedural errors or misapplications of law had occurred. Given the appellant's arguments and the concession by the second respondent, the court's task was to evaluate the merits of the appeal and decide whether the appeal should be upheld, leading to the annulment of the original decisions and the re-hearing of the matter by a different judge.

The court concluded that the appeal was successful and that the original declarations and orders were flawed. Consequently, the appeal was allowed, and the original decisions were set aside. The court emphasised the importance of impartiality and fairness in judicial proceedings, particularly in light of the concessions made by the second respondent. The court also ordered that the matter be remitted for re-hearing by a different judge to ensure there was no perceived or actual bias. Additionally, the court directed that costs certificates be provided to both parties under the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal, recognising the need to fairly allocate costs in light of the outcome.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly, Ground 1 is made out and this is dispositive of the entire appeal.Conclusion The appeal should be allowed and the declaration and orders made by the primary judge be set aside. As put forward by the appellant and conceded by the second respondent, the matter should be remitted for re-hearing by a judge other than the primary judge, and such an order is made. Further, it is appropriate that the Court provide the appellant and second respondent with costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal.

Ratio Decidendi

Legal Principle Established

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NAA 188 of 2022 BRC 14077 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS FUNAR Appellant
AND:	MR HEADLEY First Respondent MRS HEADLEY Second Respondent

Appeal from:	Funar & Headley [2022] FedCFamC2F 1018
Appeal number(s):	NAA 188 of 2022
File number:	BRC 14077 of 2020
Judgment of:	MCCLELLAND DCJ, HENDERSON & HARPER JJ
Date of judgment:	19 December 2022
Catchwords:	FAMILY LAW – APPEAL – PROPERTY – Where final property orders and a declaration were made – Where the appellant challenged the primary judge’s reasons on 10 grounds – Where the first ground regarding procedural fairness was conceded by the second respondent – Appeal allowed by consent – Orders made by consent for the matter to be remitted for rehearing – Costs certificates granted for the appeal only.
Legislation:	Family Law Act 1975 (Cth) s 90XT(1)(a) Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited:	Berry & Andrews (2022) 65 Fam LR 183; [2022] FedCFamC1A 120 Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 House v The King (1936) 55 CLR 499; [1936] HCA 40 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Number of paragraphs:	33
Date of hearing:	Determined on the papers
Place:	In Chambers
Counsel for the Appellant:	Mr Kelly
Solicitor for the Appellant:	Paddingtons Lawyers and Attorneys
The First Respondent:	Filed Submitting Notice 10 October 2022
Counsel for the Second Respondent:	Ms Murphy
Solicitor for the Second Respondent:	Maven Lawyers

order made by:	MCCLELLAND DCJ, HENDERSON & HARPER JJ
DATE OF ORDER:	19 DECEMBER 2022