Herold & Herold - [2015] FamCAFC 5

FAMILY COURT OF AUSTRALIA

HEROLD & HEROLD

[2015] FamCAFC 5

FAMILY LAW – APPEAL – UNDEFENDED HEARING – PROCEDURAL FAIRNESS – Where the husband appeals against orders dismissing his application for property settlement and giving leave to the wife to proceed on an undefended basis – Where the husband also appeals the orders for property settlement that were subsequently made – Where the gravamen of the husband’s complaint on appeal was that the trial judge failed to accord him procedural fairness by dismissing his application for property settlement and excluding him from the proceedings which were part-heard – Where the Full Court found that at the point the husband’s application was dismissed he had material before the court and had not failed to comply with any relevant procedural orders – Where the Full Court held that there had been a denial of procedural fairness – Where the Full Court further held that a rehearing would be likely to provide a more favourable result to the husband – Appeal allowed – Remitted for rehearing – Costs certificates granted.

Family Law Act 1975 (Cth)

Allesch v Maunz (2000) 203 CLR 172
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Kioa v West (1985) 159 CLR 550
Re F (Litigants in person guidelines) (2001) FLC 93-072
Stead v State Government Insurance Commission (1986) 161 CLR 141
Yorston & Yorston [2013] FamCAFC 49

APPELLANT:

Mr Herold

RESPONDENT:

Ms Herold

FILE NUMBER:

PTW

3108

2010

APPEAL NUMBER:

2013

DATE DELIVERED::

21 January 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Perth

JUDGMENT OF:

Bryant CJ, Strickland and Crisford JJ

HEARING DATE:

1 April 2014

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

21 November 2012

LOWER COURT MNC:

[2012] FCWA 130

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Hooper SC with Ms Loukas

SOLICITOR FOR THE APPELLANT:

Dwyer Durack

COUNSEL FOR THE RESPONDENT:

Ms Farmer

SOLICITOR FOR THE RESPONDENT:

Baldivis Law & Mediation

Orders

Leave is granted to the appellant husband to amend the grounds of appeal to reflect the grounds as contained in Annexure “A” of the affidavit of Simon Shenton French filed on 26 March 2014.
The appeal be allowed.
Order 1 of the orders made by the Honourable Justice Moncrieff on 21 November 2012 dismissing the appellant husband’s application and giving leave to the wife to proceed on an undefended basis be set aside.
Orders 1 to 22 of the further orders made by the Honourable Justice Moncrieff on 21 November 2012 be set aside.
The matter be remitted for rehearing by a judge of the Family Court of Western Australia, other than Justice Moncrieff.
The Court grants to the appellant husband a costs certificate pursuant to the provisions of section 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 husband in respect of the…

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

AGLC: Herold & Herold [2015] FamCAFC 5
Case: [2015] FamCAFC 5
Decision Date: 21 January 2015

CaseChat Overview and Summary

The husband appealed against the orders of the Family Court of Western Australia, which had dismissed his application for property settlement and granted leave to the wife to proceed on an undefended basis. He further appealed the orders for property settlement that were subsequently made. The husband argued that the trial judge failed to accord him procedural fairness by dismissing his application for property settlement and excluding him from the proceedings which were part-heard. The Full Court of the Family Court of Australia considered this appeal.

The legal issues before the court were whether the trial judge had denied procedural fairness and whether a rehearing would likely provide a more favourable result for the husband. The husband claimed that the trial judge had dismissed his application for property settlement without sufficient justification, and that he had been excluded from the proceedings despite having material before the court and not failing to comply with any relevant procedural orders. The Full Court found that there had been a denial of procedural fairness and that a rehearing would likely provide a more favourable result for the husband.

The Full Court found that the trial judge had dismissed the husband's application for property settlement without sufficient justification, and that the husband had material before the court and had not failed to comply with any relevant procedural orders. The court found that the trial judge had denied procedural fairness by dismissing the husband's application for property settlement and excluding him from the proceedings which were part-heard. The Full Court held that a rehearing would likely provide a more favourable result for the husband.

The appeal was allowed, and the orders made by the trial judge were set aside. The matter was remitted for rehearing by a judge of the Family Court of Western Australia, other than Justice Moncrieff. Costs certificates were granted to both parties, pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth).

Orders

Orders of the court

1. Leave is granted to the appellant husband to amend the grounds of appeal to reflect the grounds as contained in Annexure “A” of the affidavit of Simon Shenton French filed on 26 March 2014.

2. The appeal be allowed.

3. Order 1 of the orders made by the Honourable Justice Moncrieff on 21 November 2012 dismissing the appellant husband’s application and giving leave to the wife to proceed on an undefended basis be set aside.

Orders 1 to 22 of the further orders made by the Honourable Justice Moncrieff on 21 November 2012 be set aside.

5. The matter be remitted for rehearing by a judge of the Family Court of Western Australia, other than Justice Moncrieff.

6. The Court grants to the appellant husband a costs certificate pursuant to the provisions of section 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 husband in respect of the costs incurred by the appellant husband in relation to the appeal.

7. The Court grants to the respondent wife a costs certificate pursuant to the provisions of section 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 wife in respect of the costs incurred by the respondent wife in relation to the appeal.

8. The Court grants to each party a costs certificate pursuant to the provisions of section 8 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

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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