Maidment & Insley

Case [2022] FedCFamC1A 48


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Maidment & Insley [2022] FedCFamC1A 48

Appeal from: Insley & Maidment [2021] FCCA 1399
Appeal number(s): SOA 44 of 2021
File number(s): DGC 2380 of 2017
Judgment of: MCCLELLAND DCJ, TREE & GILL JJ
Date of judgment: 7 April 2022
Catchwords: FAMILY LAW – APPEAL – Powers of the Full Court – Appeal from a final judgment – Appeal grounds directed to evidence at first instance – Loss of recording of proceedings – Absence of record of first instance proceedings impacts Court’s ability to exercise its jurisdiction – Appeal allowed – Matter remitted for rehearing.
Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 35, 36

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:

Aluminium Louvres & Ceilings Pty Ltd v Zheng (2006) 4 DDCR 358; [2006] NSWCA 34

Carlson v King (1947) 64 WN (NSW) 65

DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kuriakin & Kuriakin [2011] FamCAFC 199

Pisani and Pisani (2008) FLC 93-362; [2008] FamCAFC 25

Scrymegeour & Scrymegeour (2014) FLC 93-600; [2014] FamCAFC 130

Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35

Teelow v Commissioner of Police [2009] 2 Qd R 489; [2009] QCA 84

Number of paragraphs: 31
Date of hearing: 4 February 2022
Place: Melbourne (via video link), delivered in Sydney
Solicitor for the Appellant: Litigant in person
Counsel for the Respondent: Mr Dunlop
Solicitor for the Respondent: Fair Family Law

ORDERS

SOA 44 of 2021
DGC 2380 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS MAIDMENT

Appellant

AND:

MR INSLEY

Respondent

ORDER MADE BY:

MCCLELLAND DCJ, TREE & GILL JJ

DATE OF ORDER:

7 APRIL 2022

THE COURT ORDERED ON 4 FEBRUARY 2022 THAT:

1.The appeal be allowed.

2.The orders of the Federal Circuit Court of Australia made on 22 June 2021 be set aside on and as from the date upon which further orders are made by the Federal Circuit and Family Court of Australia (Division 2).

3.The matter is remitted for rehearing before a Federal Circuit and Family Court of Australia (Division 2) judge other than the primary judge.

4.The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 in respect of the costs incurred by the appellant in relation to the appeal.

5.The Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the…

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AGLC
Maidment & Insley [2022] FedCFamC1A 48
Case
[2022] FedCFamC1A 48
Decision Date

CaseChat Overview and Summary

This appeal was brought by Ms Maidment against Mr Insley. The matter arose from a final judgment made by the Federal Circuit Court of Australia concerning family law matters. Ms Maidment sought to appeal the decision on the basis that the proceedings were flawed due to the absence of a record of the evidence presented at the first instance. The appeal was heard by the Full Court of the Family Court of Australia, which had to determine whether the absence of a record of the proceedings at the first instance affected the court’s ability to exercise its jurisdiction and whether the appeal should be allowed.

The court had to consider whether the absence of a record of the proceedings at the first instance was significant enough to impact the court’s jurisdiction to hear the appeal. The court examined the relevant legislation and case law to determine the effect of the absence of a record on the appeal process. The court found that the absence of a record of the proceedings at the first instance did impact its ability to exercise its jurisdiction and that the appeal should be allowed. The court also found that the matter should be remitted for rehearing before a different judge.

The court allowed the appeal and set aside the orders of the Federal Circuit Court of Australia made on 22 June 2021. The matter was remitted for rehearing before a Federal Circuit and Family Court of Australia (Division 2) judge other than the primary judge. The court also granted costs certificates to both parties under the Federal Proceedings (Costs) Act 1981 (Cth). The court dismissed Ms Maidment’s application in an appeal filed on 24 January 2022. The form of the order is subject to the entry in the Court’s records.

Orders

Orders of the court

SOA 44 of 2021

DGC 2380 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS MAIDMENT

Appellant

AND:

MR INSLEY

Respondent

ORDER MADE BY:

MCCLELLAND DCJ, TREE & GILL JJ

DATE OF ORDER:

7 APRIL 2022

THE COURT ORDERED ON 4 FEBRUARY 2022 THAT:

1. The appeal be allowed.

2. The orders of the Federal Circuit Court of Australia made on 22 June 2021 be set aside on and as from the date upon which further orders are made by the Federal Circuit and Family Court of Australia (Division 2).

3. The matter is remitted for rehearing before a Federal Circuit and Family Court of Australia (Division 2) judge other than the primary judge.

4. The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 in respect of the costs incurred by the appellant in relation to the appeal.

5. The Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 in respect of the costs incurred by the respondent in relation to the appeal.

6. The Court grants to the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred in relation to the re-hearing.

AND IT IS FURTHER ORDERED THAT:

7. The appellant’s Application in an Appeal filed 24 January 2022 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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