Keenon & Keenon - [2008] FamCAFC 58

FAMILY COURT OF AUSTRALIA

KEENON & KEENON

[2008] FamCAFC 58

FAMILY LAW - APPEAL – FEDERAL MAGISTRATE – COSTS ORDER – Whether the appellant was denied procedural fairness by not having the opportunity to make submissions in respect of costs – Whether Federal Magistrate erred in the exercise of discretion in making costs order – Lack of procedural fairness established – Appeal upheld.

FAMILY LAW - APPEAL – APPLICATION TO ADMIT FURTHER EVIDENCE – Where relevance of further evidence questionable – Where evidence was available at the time of the hearing before the Federal Magistrate and could have been adduced at the hearing – Application dismissed.

Family Law Act1975 (Cth) – s 79A, s 90MT (1)(a), s 94AAA(3)

Federal Proceedings (Costs) Act 1981(Cth)

Allesch v Maunz (2000) 203 CLR 172
CDJ v VAJ (1998) 197 CLR 172
Kioa v West (1985) 159 CLR 550
Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Lam (2003) 214 CLR 1
Tudor & Tudor (1992) FLC 92-275
West & Green (1993) FLC 92-395

APPELLANT:

Ms Keenan

RESPONDENT:

Mr Keenon

FILE NUMBER:

SYC

2291

2007

APPEAL NUMBER:

119

2007

DATE DELIVERED:

7 May 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Sydney

JUDGMENT OF:

Boland J

HEARING DATE:

27 February 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

12 September 2007

LOWER COURT MNC:

[2007] FMCAfam 811

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Pagani

SOLICITOR FOR THE APPELLANT:

Miller Harris Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Walsh

Orders

That the appeal is allowed.
That Order 5 of the orders made by Federal Magistrate Kemp on 12 September 2007 be set aside.
That appellant wife file and serve on or before 12 May 2008 brief written submissions as to whether the matter should be remitted for rehearing before Federal Magistrate Kemp, or in the event that it is sought that the discretion be re-exercised, setting out particulars of orders sought.
That the respondent husband file and serve on or before 19 May 2008 brief written submissions as to whether the matter should be remitted for rehearing before Federal Magistrate Kemp, or in the event that it is sought that the discretion be re-exercised, setting out particulars of orders sought.

IT IS NOTED that publication of this judgment under the pseudonym Keenon & Keenon is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 119 of 2007
File Number: SYC 2291 of 2007

Ms Keenon

Appellant

And

Mr Keenon

Respondent

REASONS FOR JUDGMENT

Introduction

By Further Amended Notice of Appeal filed 2 November 2007 Ms Keenon seeks to appeal an order for costs made by Federal Magistrate Kemp on 12 September 2007 when the hearing of her claim under s 79A of the Family Law Act1975 (Cth) (“the Act”) was adjourned. The appeal is resisted by Mr Keenon.
Mr and Mrs Keenon were divorced many years ago, and Mr Keenon…

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.

Keep reading for free

Create a free CaseChat account to read Keenon & Keenon and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] FamCAFC 58
Decision Date: 7 May 2008

CaseChat Overview and Summary

The appeal was heard by the Family Court of Australia, between Keenon (the appellant) and Keenon (the respondent). The appeal concerned a decision made by the Federal Magistrate regarding a costs order and an application to admit further evidence. The appellant contested the procedural fairness of the Federal Magistrate's decision-making process, particularly in relation to the opportunity to make submissions on the costs order. Additionally, the appellant sought to adduce further evidence that was not presented at the initial hearing, arguing its relevance to the matter.

The legal issues before the court involved whether the appellant was denied procedural fairness by not being given the opportunity to make submissions in respect of the costs order. The court also needed to determine whether the Federal Magistrate erred in exercising their discretion in making the costs order. Furthermore, the court had to decide on the application to admit further evidence, considering whether the evidence was relevant and whether it could have been presented at the original hearing.

The court found that the appellant was indeed denied procedural fairness as she was not given the opportunity to make submissions regarding the costs order. The court held that this denial of procedural fairness was significant enough to warrant setting aside the Federal Magistrate's costs order. The court also dismissed the application to admit further evidence, finding that the evidence was questionable in its relevance and could have been presented at the initial hearing. Consequently, the appeal was allowed, and the costs order was set aside.

The court ordered that the appellant file and serve written submissions on whether the matter should be remitted for rehearing before the Federal Magistrate or if the discretion should be re-exercised, specifying the orders sought. The respondent was also required to file and serve written submissions within a specified timeframe.

Orders

Orders of the court

That the appeal is allowed.

That Order 5 of the orders made by Federal Magistrate Kemp on 12 September 2007 be set aside.

That appellant wife file and serve on or before 12 May 2008 brief written submissions as to whether the matter should be remitted for rehearing before Federal Magistrate Kemp, or in the event that it is sought that the discretion be re-exercised, setting out particulars of orders sought.

That the respondent husband file and serve on or before 19 May 2008 brief written submissions as to whether the matter should be remitted for rehearing before Federal Magistrate Kemp, or in the event that it is sought that the discretion be re-exercised, setting out particulars of orders sought.

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.