Kingston & Field (No 2)

[2020] FamCAFC 235

FAMILY COURT OF AUSTRALIA

KINGSTON & FIELD (NO. 2) [2020] FamCAFC 235

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Where grounds of appeal contend apprehended bias by both conduct and omission – Mistake of fact, assessment of contributions and the application of s 75(2) of the Family Law Act 1975 (Cth) – Where the appellant alleges the primary judge failed to take material considerations into account – Procedural fairness – Where the appellant could not establish discretionary error – Where the appealed orders were not “unreasonable or plainly unjust” or “plainly wrong” – Where the primary’s judges assessment of the parties’ contribution-based entitlements did not miscarry – Where the primary judge’s reasons are adequate – Where the primary judge correctly exercised discretion pursuant to s 75(2) of the Family Law Act 1975 (Cth) – No discretionary error apparent – No denial of procedural fairness – Where the appeal lacks merit – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – Where further evidence applies to grounds of apprehended bias by omission – Where only some of the further evidence is received in the appeal.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Leave to rely on a summary of argument exceeding the permitted length – Where the longer summary of argument assisted the self-represented appellant – Where there is no detriment to the appellant – Leave granted.

FAMILY LAW – APPEAL – COSTS – Where the appeal is wholly unsuccessful – Where the respondent seeks costs – Where all costs are opposed by the appellant – Where the appellant’s financial circumstances are a salient consideration, but the appellant was self-represented and his contentions lacked an evidentiary premise or were plainly wrong – Where application of s 117 of the Family Law Act 1975 (Cth) warrants a cost order – Costs ordered in a fixed sum.

Evidence Act 1995 (Cth) s 138
Family Law Act 1975 (Cth) Pts VII, VIII, ss 75(2), 93A(2), 117
Legal Profession Uniform Law (NSW)
Surveillance Devices Act 2007 (NSW) s 11
Telecommunications (Interception and Access) Act 1979 (Cth) s 6(1)

Family Law Rules 2004 (Cth) r 19.18(1)(a)
Family Court of Australia, Practice Direction: No. 1 of 2017 – Conduct of Appeals 22 December 2016, cl 4
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 38
Legal Profession Uniform Conduct (Barristers) Rules 2015 r 101(j)

Antoun v The Queen (2006) 224 ALR 51; [2006] HCA 2
Black and Kellner (1992) FLC 92-287; [1992] FamCA 2
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Chorn and Hopkins (2004) FLC 93-204; [2004] FamCA 633
Chang v Su (2002) FLC 93-117; [2002] FamCA 156
Concrete Pty Ltd v Parramatta Design& Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
De Winter and De Winter (1979) FLC 90-605
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR…