Keeva & Lynet (No 2) - [2024] FedCFamC1A 42

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Keeva & Lynet (No 2) [2024] FedCFamC1A 42

Appeal from: Lynet & Keeva [2023] FCWA 205

Appeal number: NAA 307 of 2023

File number: PTW 1780 of 2021

Judgment of: TREE, GILL & STRUM JJ

Date of judgment: 28 March 2024

Catchwords: FAMILY LAW – APPEAL – Property – Spousal maintenance – Where the primary judge varied earlier interim property orders – Adequacy of reasons – Where the primary judge gave no reason as to why it was reasonable and equitable to make the orders – Procedural fairness – Where the primary judge gave no notice to the appellant – Where the respondent did not seek such an order – Where the respondent concedes the appeal – Error identified – Appeal allowed by consent.

Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32

Cases cited:
Bhatnager & Riju [2018] FamCAFC 144

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Number of paragraphs: 9

Date of hearing: 21 March 2024

Place: Heard in Brisbane (via video link), delivered in Cairns

Counsel for the Appellant: Ms Anderson

Solicitor for the Appellant: Katie Buck Legal

Counsel for the Respondent: Mr Hedges SC

Solicitor for the Respondent: Richardson Legal
ORDERS

NAA 307 of 2023
PTW 1780 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR KEEVA
Appellant

AND:
MS LYNET
Respondent

ORDER MADE BY:

TREE, GILL & STRUM JJ

DATE OF ORDER:

21 MARCH 2024

ON 21 MARCH 2024 THE COURT ORDERED BY CONSENT THAT:
1.The appellant have leave to appeal Orders 1 and 2 of the Family Court of Western Australia made 29 September 2023.
2.The appeal is allowed.
3.Orders 1 and 2 of the Family Court of Western Australia made 29 September 2023 are set aside.
4.The Application in a Case filed 31 August 2022 (as amended by an amended minute of interim orders sought filed 8 March 2023) and the Amended Response to an Application in a Case filed 6 December 2022 (as amended by an amended minute of interim orders sought filed on 10 March 2023) be remitted to the Family Court of Western Australia for rehearing before a judge other than the primary judge.
5.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating 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 him in the appeal.
6.The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating 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 him in the appeal.
7.The Court grants to each party a…

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 Keeva & Lynet (No 2)

Details

AGLC: Keeva & Lynet (No 2) [2024] FedCFamC1A 42
Case: [2024] FedCFamC1A 42
Decision Date: 28 March 2024

CaseChat Overview and Summary

In the case of Keeva & Lynet (No 2), the appellant, Mr. Keeva, appealed the property and spousal maintenance orders made by the Family Court of Western Australia on 29 September 2023. The court was required to determine whether the primary judge provided adequate reasons for varying earlier interim property orders, whether the orders were reasonable and equitable, and if the primary judge acted with procedural fairness by not providing notice to the appellant. Additionally, the court had to consider the concession by the respondent, Ms. Lynet, that the appeal should be allowed.

The Federal Circuit and Family Court of Australia, Appellate Division, found that the primary judge failed to provide adequate reasons for the variation of the interim orders, particularly in explaining why it was reasonable and equitable to make the orders. The court also noted that the primary judge did not provide notice to the appellant as required by procedural fairness. Despite these issues, the respondent conceded the appeal, leading the court to allow the appeal by consent. Consequently, the earlier orders were set aside, and the matter was remitted to the Family Court of Western Australia for rehearing before a different judge.

On 21 March 2024, the court made several orders by consent. The appeal was allowed, and the property and spousal maintenance orders made on 29 September 2023 were set aside. The application and response were to be remitted to the Family Court for rehearing. The appellant was granted a costs certificate for the appeal, and both parties received costs certificates for the rehearing. The form of the order is subject to review for minor errors or variations as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

Orders

Orders of the court

NAA 307 of 2023

PTW 1780 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR KEEVA

Appellant

AND:

MS LYNET

Respondent

ORDER MADE BY:

TREE, GILL & STRUM JJ

DATE OF ORDER:

21 MARCH 2024

ON 21 MARCH 2024 THE COURT ORDERED BY CONSENT THAT:

1. The appellant have leave to appeal Orders 1 and 2 of the Family Court of Western Australia made 29 September 2023.

2. The appeal is allowed.

3. Orders 1 and 2 of the Family Court of Western Australia made 29 September 2023 are set aside.

4. The Application in a Case filed 31 August 2022 (as amended by an amended minute of interim orders sought filed 8 March 2023) and the Amended Response to an Application in a Case filed 6 December 2022 (as amended by an amended minute of interim orders sought filed on 10 March 2023) be remitted to the Family Court of Western Australia for rehearing before a judge other than the primary judge.

5. The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating 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 him in the appeal.

6. The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating 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 him in the appeal.

7. The Court grants to each party a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to the parties in respect of the costs incurred by them in relation to the rehearing.

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).

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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NAA 307 of 2023 PTW 1780 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR KEEVA Appellant
AND:	MS LYNET Respondent

Appeal from:	Lynet & Keeva [2023] FCWA 205
Appeal number:	NAA 307 of 2023
File number:	PTW 1780 of 2021
Judgment of:	TREE, GILL & STRUM JJ
Date of judgment:	28 March 2024
Catchwords:	FAMILY LAW – APPEAL – Property – Spousal maintenance – Where the primary judge varied earlier interim property orders – Adequacy of reasons – Where the primary judge gave no reason as to why it was reasonable and equitable to make the orders – Procedural fairness – Where the primary judge gave no notice to the appellant – Where the respondent did not seek such an order – Where the respondent concedes the appeal – Error identified – Appeal allowed by consent.
Legislation:	Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32
Cases cited:	Bhatnager & Riju [2018] FamCAFC 144 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Number of paragraphs:	9
Date of hearing:	21 March 2024
Place:	Heard in Brisbane (via video link), delivered in Cairns
Counsel for the Appellant:	Ms Anderson
Solicitor for the Appellant:	Katie Buck Legal
Counsel for the Respondent:	Mr Hedges SC
Solicitor for the Respondent:	Richardson Legal

ORDER MADE BY:	TREE, GILL & STRUM JJ
DATE OF ORDER:	21 MARCH 2024