Herold & Herold

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).