Kaysen & Landis - [2024] FedCFamC2F 783

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaysen & Landis [2024] FedCFamC2F 783

File number(s): DGC 768 of 2022

Judgment of: JUDGE JENKINS

Date of judgment: 16 May 2024

Catchwords: FAMILY LAW – costs certificates – where Court has had previous involvement with one party but this was not realised until part way through cross-examination – where it is not appropriate for Court to continue hearing the matter – where the familiarity would not have been realised in the usual conflict checks

Legislation:
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) Sch 1 Items 13, 14

Federal Proceeding (Costs) Act 1981 (Cth) s 10

Cases cited:
Griffin & Croft [2015] FCCA 2685

Lindner & Lindner (1985) FLC 91-638

Redshaw & Redshaw (1989) 13 FamLR 495

Division: Division 2 Family Law

Number of paragraphs: 14

Date of hearing: 16 May 2024

Place: Dandenong

Counsel for the Applicant: Ms Teicher

Solicitor for the Applicant: Pentana Stanton Lawyers

Counsel for the Respondent: Mr McIvor

Solicitor for the Respondent: CMA Law
ORDERS

DGC 768 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS KAYSEN

Applicant

AND:
MR LANDIS

Respondent

ORDER MADE BY:

JUDGE JENKINS

DATE OF ORDER:

16 MAY 2024

THE COURT ORDERS THAT:
1.The matter is adjourned for Defended Hearing on 12 and 13 September 2024 at 10.00am before Judge Burt with an estimated hearing time of 2 (two) days.
2.Judge Jenkins is recused from any further involvement in these proceedings.
3.The Order made on 13 July 2023 that section 102NA applies to these proceedings will remain in full force and effect.
4.The Court grants to the applicant, a costs certificate pursuant to the provisions of section 10 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, fixed in the amount of $3,768.84 (three thousand, seven hundred and sixty eight dollars and eighty four cents), to the applicant in respect of the costs incurred by them in relation to the incomplete proceedings.
5.The Court grants to the respondent, a costs certificate pursuant to the provisions of section 10 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, fixed in the amount of $3,768.84 (three thousand, seven hundred and sixty eight dollars and eighty four cents), to the respondent in respect of the costs incurred by them in relation to the incomplete proceedings.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13

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 Kaysen & Landis

Details

AGLC: Kaysen & Landis [2024] FedCFamC2F 783
Case: [2024] FedCFamC2F 783
Decision Date: 16 May 2024

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Kaysen & Landis was heard, involving a dispute between Ms Kaysen, the applicant, and Mr Landis, the respondent. The matter was initially heard by Judge Jenkins, but during the cross-examination of the respondent, it became apparent that the Court had previously been involved with one of the parties. This prior involvement was not identified during the usual conflict checks, leading to the necessity for Judge Jenkins to recuse themselves from further involvement in the proceedings. The legal issues that arose from this situation centred on the appropriateness of the Court continuing to hear the matter given the prior relationship, and the allocation of costs incurred by both parties due to the need to adjourn the matter and assign a new judge.

The Court considered the necessity for impartiality and the potential for bias in light of the prior involvement, which was not identified until partway through the proceedings. Judge Jenkins found it inappropriate to continue with the matter due to this prior relationship, which could have influenced the proceedings. The Court also needed to address the costs incurred by both parties, which arose from the unexpected need to adjourn the matter and assign a new judge. The Court considered the amount of costs incurred and found it appropriate to grant costs certificates to both parties. This was done under the provisions of section 10 of the Federal Proceedings (Costs) Act 1981, fixing the amount of costs at $3,768.84 for each party.

The Court's reasoning led to the decision that the matter would be adjourned for a defended hearing on 12 and 13 September 2024 before Judge Burt, with an estimated hearing time of two days. Additionally, the Court granted costs certificates to both parties in the amount of $3,768.84, recognising the costs incurred due to the unexpected circumstances of the case. Judge Jenkins was recused from any further involvement in these proceedings, and the previous order regarding section 102NA remained in full force and effect. The Court's decision was documented and subject to review for any minor errors or variations in the order.

Orders

Orders of the court

DGC 768 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS KAYSEN

Applicant

AND:

MR LANDIS

Respondent

ORDER MADE BY:

JUDGE JENKINS

DATE OF ORDER:

16 MAY 2024

THE COURT ORDERS THAT:

1. The matter is adjourned for Defended Hearing on 12 and 13 September 2024 at 10.00am before Judge Burt with an estimated hearing time of 2 (two) days.

2. Judge Jenkins is recused from any further involvement in these proceedings.

3. The Order made on 13 July 2023 that section 102NA applies to these proceedings will remain in full force and effect.

4. The Court grants to the applicant, a costs certificate pursuant to the provisions of section 10 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, fixed in the amount of $3,768.84 (three thousand, seven hundred and sixty eight dollars and eighty four cents), to the applicant in respect of the costs incurred by them in relation to the incomplete proceedings.

5. The Court grants to the respondent, a costs certificate pursuant to the provisions of section 10 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, fixed in the amount of $3,768.84 (three thousand, seven hundred and sixty eight dollars and eighty four cents), to the respondent in respect of the costs incurred by them in relation to the incomplete proceedings.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	DGC 768 of 2022
Judgment of:	JUDGE JENKINS
Date of judgment:	16 May 2024
Catchwords:	FAMILY LAW – costs certificates – where Court has had previous involvement with one party but this was not realised until part way through cross-examination – where it is not appropriate for Court to continue hearing the matter – where the familiarity would not have been realised in the usual conflict checks
Legislation:	Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) Sch 1 Items 13, 14 Federal Proceeding (Costs) Act 1981 (Cth) s 10
Cases cited:	Griffin & Croft [2015] FCCA 2685 Lindner & Lindner (1985) FLC 91-638 Redshaw & Redshaw (1989) 13 FamLR 495
Division:	Division 2 Family Law
Number of paragraphs:	14
Date of hearing:	16 May 2024
Place:	Dandenong
Counsel for the Applicant:	Ms Teicher
Solicitor for the Applicant:	Pentana Stanton Lawyers
Counsel for the Respondent:	Mr McIvor
Solicitor for the Respondent:	CMA Law

DGC 768 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS KAYSEN Applicant
AND:	MR LANDIS Respondent

ORDER MADE BY:	JUDGE JENKINS
DATE OF ORDER:	16 MAY 2024