FAMILY COURT OF AUSTRALIA
| NABERS & NABERS | [2011] FamCAFC 145 |
| FAMILY LAW – APPEAL FROM DECISION OF FEDERAL MAGISTRATE – PROPERTY – PROCEDURE – Where the husband appeals the orders of a Federal Magistrate effecting a property settlement between the parties – Where the Federal Magistrate refused the husband’s application for an adjournment – Where the trial proceeded in the husband’s absence – In circumstances where the husband was self-represented and had a history of anxiety and depression, whether the Federal Magistrate denied the husband natural justice in refusing to allow the husband to read a statement in support of his application for an adjournment, following the withdrawal of his solicitor – The husband was not afforded natural justice – Appeal allowed and remitted for rehearing before a different Federal Magistrate – Costs certificates granted. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) Family Law Rules 2004 (Cth) |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Allesch v Maunz (2000) 203 CLR 172 Antoun v R (2006) 224 ALR 51 Collins & Collins (1990) FLC 92-149 Gallo v Dawson (1990) 93 ALR 479 Johnson & Johnson (1997) FLC 92-764 Johnson & Johnson (No 3) (2000) FLC 93-041 Re F: Litigants in Person Guidelines (2001) 93-072 Stead v State Government Insurance Commission (1986) 161 CLR 141 |
| APPELLANT: | Mr Nabers |
| RESPONDENT: | Ms Nabers |
| FILE NUMBER: | DUC | 46 | of | 2008 |
| APPEAL NUMBER: | EA | 15 | of | 2010 |
| DATE DELIVERED: | 7 July 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Strickland and Murphy JJ |
| HEARING DATE: | 20 May 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 7 April 2009, 8 July 2009 and 15 January 2010 |
| LOWER COURT MNC: | [2009] FMCAfam 69 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Nabers appeared in person |
| COUNSEL FOR THE RESPONDENT: | Mr Kenny |
| SOLICITOR FOR THE RESPONDENT: | McIntosh Emerton & Thomas |
Orders
The husband’s oral application to adduce further evidence be dismissed.
The appeal be allowed.
The orders made by Federal Magistrate Demack on 15 January 2010 be set aside.
The matter be remitted for rehearing as soon as possible before a Federal Magistrate other than Federal Magistrate Demack.
There be no order as to costs.
The Court grants to the husband a costs certificate pursuant to the provisions of 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 husband in respect of the costs incurred by the husband in relation to the appeal.
The Court grants to the wife a costs certificate pursuant to the provisions of 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 wife in respect of the costs incurred by the wife in…
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- Nabers & Nabers [2011] FamCAFC 145
- Case
- [2011] FamCAFC 145
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the husband's application to introduce additional medical reports and records, along with documents from a further appeal book, should be permitted. The court had to consider the timeliness of the application, the relevance and admissibility of the proposed evidence, and whether the husband had acted in accordance with the procedural requirements of the court. Additionally, the court examined whether the husband's application complied with the principles of natural justice and procedural fairness.
The Full Court dismissed the husband's application to adduce further evidence. The court found that the husband had not met the requirements of natural justice by failing to provide the proposed evidence in a timely manner and by not demonstrating that the evidence was necessary to ensure a fair hearing. The court emphasized that the evidence proposed by the husband, including documents from the further appeal book and additional medical reports, was not critical to the outcome of the appeal. The court also noted that some of the proposed evidence had already been in the possession of the Federal Magistrate. Consequently, the appeal was allowed, the orders of the Federal Magistrate were set aside, and the matter was remitted for rehearing before a different Federal Magistrate.
The court issued several orders, including dismissing the husband's application to adduce further evidence, allowing the appeal, setting aside the orders of the Federal Magistrate, remitting the matter for rehearing, and granting costs certificates to both parties for the costs incurred in relation to the appeal and the rehearing.
Orders
Orders of the court
1.
The husband’s oral application to adduce further evidence be dismissed.
2.
The appeal be allowed.
3.
The orders made by Federal Magistrate Demack on 15 January 2010 be set aside.
4.
The matter be remitted for rehearing as soon as possible before a Federal Magistrate other than Federal Magistrate Demack.
5.
There be no order as to costs.
6.
The Court grants to the husband a costs certificate pursuant to the provisions of 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 husband in respect of the costs incurred by the husband in relation to the appeal.
7.
The Court grants to the wife a costs certificate pursuant to the provisions of 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 wife in respect of the costs incurred by the wife in relation to the appeal.
8.
The Court grants to each party a costs certificate pursuant to the provisions of
s 8 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the rehearing.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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