FAMILY COURT OF AUSTRALIA
| KAVAN & MALLERY AND ANOR | [2015] FamCAFC 82 |
| FAMILY LAW – APPEAL – JURISDICTION – Where the Federal Circuit Court of Australia made an order “remitting” property proceedings to the Supreme Court of New South Wales – Whether the Federal Circuit Court had the power to transfer proceedings to the Supreme Court of New South Wales – Where the Full Court held that the Federal Circuit Court did have the power to transfer the proceedings because the Supreme Court of New South Wales has jurisdiction in de facto financial causes by virtue of the Family Court having jurisdiction under s 39B(1) of the Family Law Act 1975 (Cth) and the operation of s 4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) – Where the Full Court held that it was not necessary for the trial judge to identify the source of the power on which she relied to transfer the proceedings, but that it was necessary for the conditions required for that exercise of power to be satisfied – Where the Full Court found that conditions were satisfied in this case – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the Full Court held that the trial judge erred in finding that the proceedings were unable to proceed as a result of the conduct of the appellant – Where the Full Court found that the trial judge was mistaken in finding that there was an application for adjournment, or determination of such an application at the hearing at first instance – Appeal allowed – Indemnity costs orders set aside – Re-exercise of the discretion – No order for costs made – Costs certificates granted. |
| Family Law Amendment (De Facto and Other Measures) Act 2008 (Cth) Family Law Amendment (De Facto and Other Measures) Bill 2008 (Cth) Family Law Act 1975 (Cth) – ss 4(1), 31, 39, 39B(1), 39(5), 40(3) and 45(2) Federal Circuit Court of Australia Act 1999 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) – s 4(1) |
| ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559 |
| APPELLANT: | Ms Kavan |
| FIRST RESPONDENT: | Mr L Mallery |
| SECOND RESPONDENT: | Mr J Mallery |
| FILE NUMBER: | SYC | 1102 | of | 2012 |
| APPEAL NUMBERS: | EA EA | 156 3 | of of | 2013 2014 |
| DATE DELIVERED: | 11 May… |
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- AGLC
- Kavan and Mallery & Anor [2015] FamCAFC 82
- Case
- [2015] FamCAFC 82
- Decision Date
CaseChat Overview and Summary
The Full Court held that the Federal Circuit Court did have the power to remit property proceedings to the Supreme Court of New South Wales. This was based on the Family Court's jurisdiction under section 39B(1) of the Family Law Act 1975 (Cth) and the operation of section 4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). The Full Court noted that it was not necessary for the trial judge to explicitly identify the source of the power on which she relied to transfer the proceedings, as long as the conditions required for the exercise of such power were satisfied. The Full Court found that these conditions were indeed satisfied in this case. Consequently, the appeal regarding the jurisdiction of the Federal Circuit Court was dismissed.
The Full Court also addressed the issue of costs. The Full Court found that the trial judge erred in concluding that the proceedings were unable to proceed due to the conduct of the appellant. Additionally, the Full Court determined that the trial judge was mistaken in finding that there was an application for adjournment, or a determination of such an application, at the hearing at first instance. Therefore, the appeal against the costs orders made by the Federal Circuit Court was allowed, and the indemnity costs orders were set aside. After re-exercising its discretion, the Full Court decided not to make any order for costs in relation to the proceedings heard by the Federal Circuit Court on 2 October 2013, or the appeals mentioned in Orders 2 and 3 of those orders. However, the Full Court granted costs certificates to the appellant and the second respondent under the Federal Proceedings (Costs) Act 1981 (Cth).
Orders
Orders of the court
1.
There be leave (should it be required) to appeal Order 2 of the orders made by the Federal Circuit Court on 2 October 2013.
2.
The appeal against Order 2 of the orders made by the Federal Circuit Court on 2 October 2013 be dismissed.
3.
The appeal against Orders 2 and 3 of the orders made by the Federal Circuit Court on 5 December 2013 be allowed.
(4)(a) Orders 2 and 3 of the orders made by the Federal Circuit Court on 5 December 2013 be discharged.
(4)(b) There be no order for costs in relation to the proceedings heard by the Federal Circuit Court on 2 October 2013.
5.
There be no order for costs in relation to either the appeal mentioned in Order 2 of these orders or the appeal mentioned in Order 3 of these orders.
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 that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal mentioned in Order 3 of these orders.
7.
The Court grants to the second 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 second respondent in respect of the costs incurred by the second respondent in relation to the appeal mentioned in Order 3 of 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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