Nabers & Nabers

Case [2011] FamCAFC 145

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

  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…

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AGLC
Nabers & Nabers [2011] FamCAFC 145
Case
[2011] FamCAFC 145
Decision Date

CaseChat Overview and Summary

In the case of Nabers & Nabers, the husband sought to introduce additional evidence into an appeal against financial and property settlement orders. The dispute involved the interpretation and application of the Family Law Act 1975 (Cth), specifically regarding the admissibility of further evidence in the appeal process. The Federal Circuit Court of Australia was tasked with deciding whether the husband's application to adduce further evidence should be granted, considering the procedural fairness and the relevance of the proposed evidence to the appeal.

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

On 3 November 2010 the Appeals Registrar, inter alia, ordered that the husband file and serve a further appeal book to be labelled appeal book regarding documents sought to be adduced as further evidence in the appeal and comprising the documents described as “correspondence between [the husband] and the court and miscellaneous documents”. The husband complied with that order and in December 2010 prepared, filed and served this further appeal book with a blue cover. On 27 January 2010 the husband filed an application in an appeal seeking primarily an extension of time to appeal the orders for costs made by Sexton FM on 7 April 2009 and 8 July 2009, but also seeking an order that he have leave to file further evidence both in respect of his mental and physical health as being relevant to the financial and property settlement matters. On 10 February 2010 Boland J dismissed this application. As to the issue of further evidence though, her Honour said that an application in relation to the same would need to be made to “the members of the Full Court who hear and determine the appeal against Demack FM’s orders”. Accordingly, the husband made an oral application to us to adduce further evidence, in addition to what was comprised in the further appeal book, in the form of various medical reports and medical records dated between 4 August 2008 and 25 February 2011. In relation to the further appeal book, documents contained therein were extensively referred to by the husband in the document entitled “Summary of Argument” that he filed on 18 May 2011, namely only one clear day prior to the hearing of this appeal. That book was referred to by the husband in this document and during the hearing of this appeal as the “blue volume” or the “blue book” because of the colour of its cover. In any event, the husband sought to put the contents of this book before us. As to the further medical reports and records, we note that at least two of them were in fact in evidence before the Federal Magistrate. In any event, the husband’s “Summary of Argument” foreshadowed the asserted need for that material to be before this Court. He said as follows:[The Appeals Registrar], in particular since this appeal commenced has caused significant damage and has, in my opinion, blocked the ability to make sure the Full Bench know all the evidence and as an example, to make sure the psychiatric reports have been furnished as evidence. I will have to hand documents up. In general there are pieces of information that substantiate my claims and they have not been included in the Appeal books. I asked for mediation and she agreed then refused. We received the further medical reports and records and indicated that we would consider the application to lead further evidence, including the documents in the further appeal book, in the course of determining this appeal. Counsel for the wife opposed the application, but as will emerge in these reasons, nothing turns on the further evidence and we propose to dismiss the application. Our conclusion that the requirements of natural justice have not been met has been arrived at without reference to any of the material the subject of the husband’s application

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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