Kavan and Mallery & Anor

The appeal in Kavan and Mallery & Anor was brought before the Full Court of the Family Court of Australia. The appeal centred around the jurisdiction of the Federal Circuit Court of Australia in relation to property proceedings involving a de facto relationship, and the correctness of costs orders made by the Federal Circuit Court. The Full Court was required to determine whether the Federal Circuit Court had the power to remit property proceedings to the Supreme Court of New South Wales, and if the trial judge's findings regarding the conduct of the appellant and the application for adjournment were correct.

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).