Kellner and Kellner and Anor
[2017] FamCAFC 141
•20 July 2017
FAMILY COURT OF AUSTRALIA
| KELLNER & KELLNER & ANOR | [2017] FamCAFC 141 |
| FAMILY LAW – APPEAL – consent orders – where both parties agreed that the trial judge’s reasons were inadequate – where the parties filed minutes of orders seeking that the appeal be allowed and the matter be remitted for a retrial – appeal allowed – remitted. FAMILY LAW – APPEAL – COSTS – applications made for costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – where second respondent did not appear at the appeal or formally seek a costs certificate – costs certificates granted in favour of appellant and first respondent. |
| Federal Proceedings (Costs) Act 1981 (Cth) |
| APPELLANT: | Mr Kellner |
| FIRST RESPONDENT: | Ms Kellner |
| SECOND RESPONDENT: | Ms King |
| FILE NUMBER: | DNC | 439 | of | 2012 |
| APPEAL NUMBER: | NA | 40 | of | 2016 |
| DATE DELIVERED: | 20 July 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ryan, Murphy & Kent JJ |
| HEARING DATE: | 28 April 2017 20 July 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 April 2016 |
| LOWER COURT MNC: | [2016] FamCA 2016 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Pyke QC |
| SOLICITOR FOR THE APPELLANT: | Tolis & Co Lawyers |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Looney QC with Ms Harding |
| SOLICITOR FOR THE FIRST RESPONDENT: | Withnalls Lawyers |
| COUNSEL FOR THE SECOND RESPONDENT: | Not participating in the appeal |
| SOLICITOR FOR THE SECOND RESPONDENT: | Not participating in the appeal |
Orders
The appeal be allowed.
The Orders of the Honourable Justice Dawe made on 8 April 2016 be set aside.
The proceedings be remitted for rehearing.
The court grants to the appellant a costs certificate pursuant to the provisions of s 9 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 to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants the first respondent a costs certificate pursuant to the provisions of s 6 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 to the first respondent in respect of the costs incurred by the first respondent in relation to the appeal.
The Court grants both the appellant and the first respondent a costs certificate pursuant to the provisions of s 8 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 this Act to the appellant and the first respondent in respect of the costs incurred by the appellant and the first respondent in relation to the new trial.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kellner & Kellner & Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 40 of 2016
File Number: DNC 439 of 2012
| Mr Kellner |
Appellant
And
| Ms Kellner |
First Respondent
And
Ms King
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Murphy J
This appeal came before the Full Court on 28 April 2017. At that time there was no appearance by or on behalf of the second respondent nor is there any appearance by her today.
Interchanges between the Bar and Bench resulted in the matter being stood down so that the parties who are each represented by Queen’s Counsel could have some discussions. Those discussions ensued and on the resumption of the appeal, orders were made by consent the effect of which was to adjourn the appeal. Included in the orders made that day was a notation to this effect:
a)That, in the absence of written agreement between the [de facto husband] and the [de facto wife] providing to the contrary, the [de facto] husband and the [de facto] wife will, within eight (8) weeks , [sic] give their consent to the following orders being made in the appeal:
(i) That the appeal be allowed.
(ii) That the matter be remitted for rehearing.
(iii)[costs certificates be granted with respect to the appeal and rehearing]
As that notation suggests, the discussions between the parties were to the effect of attempting to settle both the appeal and the substantive action. Subsequent to the adjournment of the appeal, notification was received under the joint hands of the Queen’s Counsel for each of the parties. That notification indicated that agreement had not been reached with respect to the substantive issues but as the notation to the initial orders suggested, agreement had been reached in respect of the appeal.
The joint submissions by both Queen’s Counsel identify, for the purposes of the making of an order that the appeal be allowed, a particular error. It is to be hoped, at least on my part, that the parties continue their discussions with the view to resolving the substantive issue in light of the fact that those discussions have not borne fruit.
For that reason, and in light of the fact that inevitably, as both Queen’s Counsel concede, the proceedings must be remitted for rehearing. I propose, for my part, to say little about the error, save to note that, it is agreed between the parties that in determining the asset pool, the trial judge did not include a significant debt in excess of $220,000, which was an outstanding loan on a property referred to as the “M Street property” in the proceedings.
As those submissions point out, the debt represented approximately five per cent of what is described as the asset pool, which was valued at about $4.4 million. It is contended that, as a result of this error, the reasons for judgement of the trial judge do not on their face take that debt into account and, as a result of the materiality of that debt, the reasons are inadequate.
I propose to say no more about that matter and any other matters that were live in the appeal save to say that I, for my part, agree that there is error in the manner identified in the joint submissions of Queen’s Counsel and I agree that the appeal should be allowed and that the orders of the trial judge be set aside.
For my part, I would make orders:
a)That the appeal be allowed.
b)That the orders of the trial judge be set aside.
c)The proceedings be remitted for rehearing by a judge other than the trial judge.
I would also make an order in the usual form that certificates be granted to the appellant and the first respondent for the hearing of the appeal and also for the retrial.
As canvassed with Queen’s Counsel for the respondent wife this morning, the mooted consent orders filed by both parties postulate costs certificates being awarded in respect of the retrial for each of the appellant, the first respondent and the second respondent.
I am of the view that costs certificates should be awarded to the appellant and first respondent for the retrial. It is necessary for any party to ask the court for the issue of a certificate. As I have already indicated, the second respondent does not appear and is not in a position to ask for that certificate and I would not order that she receive a certificate for the retrial.
Otherwise the formal orders that I would make are as I have already indicated.
Kent J
I agree with the orders proposed by Justice Murphy and his Honour’s reasons for those orders.
Ryan J
I also agree and the orders of the Court will be as outlined by Justice Murphy.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Murphy and Kent JJ) delivered on 20 July 2017.
Associate:
Date: 20 July 2017
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