Leslighter & Fitzgerald-Stevens

Case [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

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Details
AGLC
Leslighter & Fitzgerald-Stevens [2012] FamCAFC 94
Case
[2012] FamCAFC 94
Decision Date

CaseChat Overview and Summary

Leslighter & Fitzgerald-Stevens was an appeal from a decision made by a Family Law Magistrate regarding final property orders. The wife had applied for the orders, but the husband was absent from the hearing. The husband had not received a minute of final orders sought by the wife, which contributed to his absence. The case involved difficulties in identifying and valuing the net property of the parties due to incomplete disclosure by the husband. The husband had filed trial affidavits, but there was evidence of confusion regarding what the court had communicated to him about the conduct of the hearing. The husband had also provided further evidence and medical evidence, which led to the appeal being allowed and the matter being reheard.

The court had to decide several legal issues, including whether the appeal should be allowed, whether the husband's application to adduce further evidence should be granted, and whether the wife should be awarded costs of the appeal. The court found that there was merit in the husband's complaints about the magistrate's consideration of certain factors and that the appeal should be allowed to do justice between the parties. The court also found that the husband's further medical evidence, while not entirely explaining his absence at the hearing, did explain his medical circumstances prior to and after the hearing, and it would be inconsistent with the interests of justice to refuse the application. The court found that the husband's financial circumstances would not prevent a costs order being justified, and the husband was ordered to pay the wife's costs of the appeal on an indemnity basis.

The court ordered that the appeal be allowed, and the application of the husband filed on 2 November 2011 be allowed. The orders made by the Family Law Magistrate on 19 April 2011 were set aside, and the applications of the husband and the wife for property settlement were remitted for rehearing. The husband was ordered to pay the wife's costs of the appeal on an indemnity basis to be agreed or assessed. This decision highlights the importance of proper disclosure of information and communication between the court and parties in family law matters.

Orders

Orders of the court

1.

The appeal is allowed.

2.

The application of the appellant husband filed 2 November 2011 is allowed.

3.

Paragraphs 1(b) and 3 of the orders made on 19 April 2011 by Family Law Magistrate Moroni be set aside.

4.

The appellant husband pay the respondent wife’s costs of the appeal on an indemnity basis to be agreed or assessed.

5.

The applications of the husband and the wife for property settlement be remitted for rehearing.

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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