KELK & STEHN

FAMILY COURT OF AUSTRALIA

KELK & STEHN [2019] FamCAFC 23

FAMILY LAW – APPEAL – LEAVE TO APPEAL – PROPERTY – Where the appellant complains that she was not afforded procedural fairness or natural justice and the primary judge did not apply the correct principles when dismissing her substantive application – Where the appellant did not comply with the orders of the court but there was confusion about the orders made and the orders were not sent by the court to the appellant’s legal representatives on the record – Where the primary judge had no regard to what the appellant did to ready her case for trial and it was the respondent who had failed to do anything in that regard – Where the primary judge dismissed the appellant’s application without proper notice, without adequate or accurate reasons and without giving her the opportunity to present her case – Where there is merit in the grounds of appeal – Appeal allowed – Matter remitted for rehearing by a judge other than the primary judge.

FAMILY LAW – EVIDENCE – Further Evidence – Where the only part of the affidavit comprising the further evidence with any relevance to the application for leave to appeal and the appeal is the section detailing the circumstances surrounding the appellant’s non-compliance with the orders of the primary judge – Where the balance of the affidavit was either inadmissible or irrelevant – Where leave to appeal is to be granted and the appeal allowed it is therefore unnecessary to receive any further evidence – Application dismissed.

FAMILY LAW – COSTS – Where the appellant sought an order for costs if leave was granted and the appeal allowed and in the alternative sought a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1975 (Cth) – Where the respondent opposed an order for costs being made but joined in the application for costs certificates – Where the appeal is being allowed on an error of law and there should be no order for costs – Where it is appropriate for both parties to have costs certificates for the appeal but not for the rehearing given that the hearing of the appellant’s substantive application is yet to take place – Costs certificates granted.

Family Law Act 1975 (Cth) s 117(1)
Federal Proceedings (Costs) Act 1975 (Cth) ss 6 and 9

Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170; [1981] HCA 39
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Bass & Bass [2016] FamCAFC 64
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Lindon v Commonwealth of Australia (No. 2) 136 ALR 251
Lindsey & Christie [2016] FamCAFC 132
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Rutherford and Rutherford (1991) FLC 92-255; [1991] FamCA 68
State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146; [1997] HCA 1

APPELLANT: Ms Kelk

RESPONDENT: Mr Stehn