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 Rules 2004 (Cth) r 19.18(1)(a) |
| 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… |
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- AGLC
- Kingston & Field (No 2) [2020] FamCAFC 235
- Case
- [2020] FamCAFC 235
- Decision Date
CaseChat Overview and Summary
The Full Court found that the appellant could not establish discretionary error in the primary judge’s assessment of the parties’ contributions or in the exercise of discretion under section 75(2). The court held that the primary judge’s reasons were adequate and that there was no miscarriage in the assessment. The appeal against the property settlement orders was dismissed as the appealed orders were not unreasonable or plainly unjust. The court also noted that no procedural unfairness was evident, and the appellant’s contentions lacked an evidentiary premise or were plainly wrong. The Full Court further allowed the appellant to rely on a summary of argument exceeding the permitted length, as it assisted the self-represented appellant without causing detriment.
The court ordered that certain affidavits and annexures be received as further evidence in the appeal. The appeal was dismissed, and the appellant was directed to pay the respondent’s costs of and incidental to the appeal in a fixed sum of $33,000. This cost order was made considering the appellant’s financial circumstances and the lack of evidentiary basis for his contentions.
Orders
Orders of the court
1.
Pursuant to s 93A(2) of the Family Law Act 1975 (Cth), paragraphs 1 to 13 of the appellant’s affidavit filed on 23 April 2020, together with the annexures referred to therein, be received as further evidence in the appeal.
2.
The appeal be dismissed.
3.
The appellant pay the respondent’s costs of and incidental to the appeal in the fixed sum of $33,000.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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