Kayser & Schauss - [2025] FedCFamC2F 367

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kayser & Schauss [2025] FedCFamC2F 367

File number(s): HBC 1025 of 2023

Judgment of: JUDGE TAGLIERI

Date of judgment: 21 March 2025

Catchwords: FAMILY LAW – Property proceedings – application for dismissal of Initiating Applicant for non-disclosure of documents, default of compliance with Court orders, and failure to prosecute the application with due diligence – Initiating Application dismissed

Legislation:
Family Law Act 1975 (Cth) ss 44(5), 90SF(3), 90SM(4), 90SM(4)(e), 102QAB

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.17, 6.17(b), 10.22, 10.27

Cases cited:
Jones v Dunkel (1959) 101 CLR 2983

Patel & Noora [2019] FCWA 260

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Tethys & Tethys [2014] FamCAFC 125

Weir & Weir (1993) FLC 92-338

Wei & Xia (No 5) [2023] FedCFamC1F 679

Zao & Lee [2019] FamCAFC 169

Division: Division 2 Family Law

Number of paragraphs: 58

Date of hearing: 11 March 2025

Place: Hobart

For the Applicant: In person

Counsel for the Respondent: Mr Scott

Solicitor for the Respondent: Tierney Law
ORDERS

HBC 1025 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR KAYSER

Applicant

AND:
MS SCHAUSS

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

21 MARCH 2025

THE COURT ORDERS THAT:
1.The Application for Final Orders filed 27 November 2023 is dismissed.
2.The Respondent has liberty to apply to the Chambers of Judge Taglieri in the event that she seeks an order for costs.

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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
BACKGROUND

The parties were in a de facto relationship, which lasted about six years based on the Initiating Application filed 27 November 2023 (“the application”) and at least two years based on the Response filed on 9 January 2024.[1]
[1] Paragraph 19 of Response.
The Initiating Application was filed a very short period after the two year limitation period referred to in s 44(5) of the Family Law Act 1975 (“the Act”). Sensibly, the Respondent did not seek to press for an interlocutory order that leave should not be given to the Applicant to make his application.
However, the Respondent now seeks an order…

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 Kayser & Schauss

Details

AGLC: Kayser & Schauss [2025] FedCFamC2F 367
Case: [2025] FedCFamC2F 367
Decision Date: 21 March 2025

CaseChat Overview and Summary

In Kayser & Schauss, the applicant, Mr Kayser, filed an application for final orders in relation to property proceedings against the respondent, Ms Schauss. The application was dismissed by Judge Taglieri of the Federal Circuit and Family Court of Australia. Mr Kayser sought various final orders concerning the distribution of property between the parties, but his application was met with resistance from Ms Schauss, who argued that the application should be dismissed due to Mr Kayser’s non-disclosure of documents, default in complying with court orders, and failure to prosecute the application with due diligence.

The central legal issue before the court was whether Mr Kayser’s conduct warranted the dismissal of his application for final orders. The court had to assess the extent to which Mr Kayser's non-disclosure of documents, defaults in compliance with court orders, and lack of diligence in pursuing the application affected the fairness and expeditiousness of the proceedings. The court needed to balance the need to protect the integrity of the court process against the rights of the applicant to seek a resolution of the property dispute.

In delivering the judgment, Judge Taglieri found that Mr Kayser’s conduct significantly undermined the fairness and efficiency of the proceedings. The judge concluded that Mr Kayser’s non-disclosure of documents, defaults in complying with court orders, and lack of diligence in prosecuting the application warranted the dismissal of his application for final orders. The court was particularly concerned with the applicant’s failure to provide crucial documents, which hindered the court's ability to make informed decisions. Consequently, the application was dismissed, and the respondent was granted liberty to apply for costs.

Orders

Orders of the court

HBC 1025 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR KAYSER

Applicant

AND:

MS SCHAUSS

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

21 MARCH 2025

THE COURT ORDERS THAT:

1. The Application for Final Orders filed 27 November 2023 is dismissed.

2. The Respondent has liberty to apply to the Chambers of Judge Taglieri in the event that she seeks an order for costs.

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):	HBC 1025 of 2023
Judgment of:	JUDGE TAGLIERI
Date of judgment:	21 March 2025
Catchwords:	FAMILY LAW – Property proceedings – application for dismissal of Initiating Applicant for non-disclosure of documents, default of compliance with Court orders, and failure to prosecute the application with due diligence – Initiating Application dismissed
Legislation:	Family Law Act 1975 (Cth) ss 44(5), 90SF(3), 90SM(4), 90SM(4)(e), 102QAB Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.17, 6.17(b), 10.22, 10.27
Cases cited:	Jones v Dunkel (1959) 101 CLR 2983 Patel & Noora [2019] FCWA 260 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Tethys & Tethys [2014] FamCAFC 125 Weir & Weir (1993) FLC 92-338 Wei & Xia (No 5) [2023] FedCFamC1F 679 Zao & Lee [2019] FamCAFC 169
Division:	Division 2 Family Law
Number of paragraphs:	58
Date of hearing:	11 March 2025
Place:	Hobart
For the Applicant:	In person
Counsel for the Respondent:	Mr Scott
Solicitor for the Respondent:	Tierney Law

HBC 1025 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR KAYSER Applicant
AND:	MS SCHAUSS Respondent

ORDER MADE BY:	JUDGE TAGLIERI
DATE OF ORDER:	21 MARCH 2025