Leslighter & Fitzgerald-Stevens

[2012] FamCAFC 94

FAMILY COURT OF AUSTRALIA

LESLIGHTER & FITZGERALD-STEVENS [2012] FamCAFC 94

FAMILY LAW – APPEAL – PROPERTY – Where the Magistrate heard the wife’s application for final property orders in the absence of the husband – Where the husband had not received the wife’s minute of final orders sought – Where there was difficulty in identifying and valuing the net property of the parties due to incomplete disclosure by the husband – Where the husband had filed trial affidavits – Where there was evidence of possible confusion as to what the Court had communicated to the husband in relation to the conduct of the hearing – Where based on the further evidence and medical evidence, in order to do justice between the parties the appeal should be allowed and the matter reheard – Where there were some significant matters raised by the husband in relation to the asset pool, which if correct, would likely render the result erroneous – Where there was merit in the husband’s complaints about the Magistrate’s consideration of s 75(2) factors – Appeal allowed.

FAMILY LAW – APPEAL – EVIDENCE – Application to adduce further evidence – Where the further medical evidence of the appellant husband does not entirely explain the husband’s absence at the hearing – Where the evidence nonetheless explains the medical circumstances of the husband prior to and after the hearing – Where it would be inconsistent with the interests of justice to refuse the application because it would leave unexplained the husband’s failure to participate where there is a relevant context – applications of the husband and the wife allowed.

FAMILY LAW – APPEAL – COSTS – Where the appeal was necessitated by the husband’s absence at the trial hearing – Where the wife should not be put to the expense of the appeal and the husband’s financial circumstances would not prevent a costs orders being justified – Husband to pay the wife’s costs of the appeal on an indemnity basis.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Family Law (Superannuation) Regulations 2001 (Cth)
Family Law Rules 2004 (Cth)

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Baldachino & Hanas [2010] FamCA 234
CDJ v VAJ (1998) 197 CLR 172
Colgate Palmolive Co and Anor  v Cussons Pty Ltd (1993) 118 ALR 248
In the Marriage of Robinson and Huff (1990) FLC 92-168
De Winter v Johnstone & Anor S119/1995 [1996] HCA Trans 155 (15 April 1996)
Fitzgerald (as child representative for A (Legal Aid Commissioner of Tasmania) v Fish and Anor (2005) 33 Fam LR 123
Coghlan & Coghlan (2005) FLC 93-220
Gronow v Gronow (1979) 144 CLR 513
Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
House v The King (1936) 55 CLR 499
NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) (2001) 109 FCR 77
Norbis v Norbis (1986) FLC 91-712
Stephens v Stephens and Anor (2010) 44 Fam LR 117