Pendleton & Pendleton

In this matter, the husband appealed against a decision by the Federal Circuit Court of Australia which varied consent orders made in family law proceedings. The husband argued that the primary judge erred in varying the consent orders without hearing further evidence from him and without considering the relevant provisions of the Family Law Act 1975 (Cth). The wife cross-appealed, arguing that the husband should have been ordered to pay her additional costs. The court was required to determine whether the primary judge erred in varying the consent orders and whether the husband was accorded procedural fairness in the proceedings. The court was also required to consider whether the husband was required to explain the meaning of documents to the wife and whether the wife was entitled to additional costs.

The court found that the primary judge erred in varying the consent orders without hearing further evidence from the husband and without considering the relevant provisions of the Family Law Act 1975 (Cth). The court found that the husband was not accorded procedural fairness in the proceedings and that his obligation to make disclosure did not extend so far as to require him to explain the meaning of documents to the wife. The court found that the magnitude of the change to the orders required that the consent orders be set aside and not varied. The court found that the wife was not entitled to additional costs.

The appeal was allowed and the orders made on 15 February 2016 were set aside. The proceedings were remitted to the Federal Circuit Court for rehearing by a judge other than Judge Coates. The rehearing was limited to the exercise of the discretion under s 79A of the Family Law Act 1975 (Cth) to vary or set aside the orders made on 18 December 2012, it having been established that there had been a miscarriage of justice in the making of those orders by reason of suppression of evidence. The court granted both parties a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and the rehearing.