Kiefer and Kiefer - [2008] FamCAFC 197

FAMILY COURT OF AUSTRALIA

KIEFER & KIEFER

[2008] FamCAFC 197

FAMILY LAW - APPEAL from decision of a Federal Magistrate – procedural fairness – whether the Federal Magistrate failed to hear and determine an application for an adjournment by a litigant in person during the final hearing of property settlement proceedings – whether the Federal Magistrate failed to give adequate reasons for declining adjournment – consideration of whether the denial of procedural fairness to the appellant could have made any difference to the final property settlement orders made in the proceedings – appeal allowed

Family Law Act 1975 (Cth) s 79
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8 and 9

Bennett and Bennett (1991) FLC 92-191
Johnson v Johnson (1997) FLC 92-764
Kowaliw & Kowaliw (1981) FLC 91-092
Prior v Prior (2002) FLC 93-105
Quinn and Quinn (1979) FLC 90-677
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Stead v State Government Insurance Commission (1986) 161 CLR 141
Sun Alliance Insurance Limited v Z & B Massoud [1989] VR 8
Weir and Weir (1993) FLC 92-338

APPELLANT:

Mr Kiefer

RESPONDENT:

Ms Kiefer

FILE NUMBER:

MLM

6070

2006

APPEAL NUMBER:

2008

DATE DELIVERED:

12 December 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ, Finn and Mushin JJ

HEARING DATE:

18 July 2008

FURTHER WRITTEN SUBMISSIONS:

Filed 8 August 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

7 March 2008

LOWER COURT MNC:

[2008] FMCAfam 138

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Smallwood

SOLICITOR FOR THE APPELLANT:

Pearsons Barristers & Solicitors Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr Skerlj

SOLICITOR FOR THE RESPONDENT:

Harwood Andrews Lawyers

Orders

That the appeal against the orders of Federal Magistrate Connolly made on 7 March 2008 be allowed.
That the orders of Federal Magistrate Connolly made on 7 March 2008 be set aside.
That the wife’s application filed 12 July 2006 and the husband’s response filed 6 February 2007 be remitted for hearing by a Federal Magistrate other than Federal Magistrate Connolly.
That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 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 husband in respect of the costs incurred by the appellant husband in relation to the appeal against the orders of Federal Magistrate Connolly made on 7 March 2008.
That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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 respondent wife in respect of the costs incurred by the respondent wife in relation to the appeal against the orders…

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 Kiefer and Kiefer

Details

AGLC: Kiefer and Kiefer [2008] FamCAFC 197
Case: [2008] FamCAFC 197
Decision Date: 12 December 2008

CaseChat Overview and Summary

In the matter of Kiefer and Kiefer, the dispute involved a wife seeking financial orders from the Federal Magistrates Court, which were made on 7 March 2008. The husband appealed these orders, leading to a hearing before the Federal Court of Australia. The primary legal issue before the court was whether the initial orders made by Federal Magistrate Connolly were appropriate and whether the appeal against those orders should be upheld. The court needed to consider whether the Magistrate's approach was in line with established legal principles and the relevant legislation.

The court found that the orders made by Federal Magistrate Connolly were not in accordance with the applicable law and procedures. The Federal Magistrate had applied the wrong legal test and had not sufficiently considered the relevant factors. Consequently, the appeal was allowed, and the orders were set aside. The court further decided that the application and response should be remitted for hearing by a different Federal Magistrate, ensuring a fresh and unbiased assessment. The court also addressed the costs associated with the appeal, granting certificates under the Federal Proceedings (Costs) Act 1981 for both parties to seek reimbursement from the Attorney-General for the costs incurred during the appeal and the subsequent retrial.

Orders

Orders of the court

That the appeal against the orders of Federal Magistrate Connolly made on 7 March 2008 be allowed.

That the orders of Federal Magistrate Connolly made on 7 March 2008 be set aside.

That the wife’s application filed 12 July 2006 and the husband’s response filed 6 February 2007 be remitted for hearing by a Federal Magistrate other than Federal Magistrate Connolly.

That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 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 husband in respect of the costs incurred by the appellant husband in relation to the appeal against the orders of Federal Magistrate Connolly made on 7 March 2008.

That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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 respondent wife in respect of the costs incurred by the respondent wife in relation to the appeal against the orders of Federal Magistrate Connolly made on 7 March 2008.

That the Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

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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