FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Saso & Saso [2023] FedCFamC1A 65
Appeal from: Saso & Saso [2022] FedCFamC2F 1535 Appeal number(s): NAA 234 of 2022 File number(s): BRC 881 of 2021 Judgment of: ALDRIDGE J Date of judgment: 11 May 2023 Catchwords: FAMILY LAW – APPEAL – Appeal from property settlement orders – Whether the primary judge afforded the appellant procedural fairness in coming to a determination that the matter proceed on an undefended basis – Where the appellant was legally represented at the final hearing but only as to an application for an adjournment and was otherwise self-represented – Where the adjournment application was refused – Where the refusal of the adjournment did not compel the matter to proceed on an undefended basis – Where submissions were not sought from the appellant as to proceeding undefended – Denial of procedural fairness – Error established – Appeal allowed – Orders set aside – Matter remitted for rehearing – Cost certificates granted. Legislation: Family Law Act 1975 (Cth) s 102NA
Federal Proceedings (Costs) Act 1981 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.33, 10.27
Cases cited: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Morgan & Valverde (2022) FLC 94-100; [2022] FedCFamC1A 133
Re F: Litigants in person guidelines (2001) FLC 93-072; [2001] FamCA 348
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Number of paragraphs: 32 Date of hearing: 13 April 2023 Place: Sydney (via video link) Counsel for the Appellant: Mr Looney KC Solicitor for the Appellant: Damien Greer Lawyers Counsel for the Respondent: Mr Wilson KC Solicitor for the Respondent: C & C Law ORDERS
NAA 234 of 2022
BRC 881 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SASO
Appellant
AND: MR SASO
Respondent
order made by:
ALDRIDGE J
DATE OF ORDER:
11 may 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 8 February 2023 is dismissed.
2.The appeal is allowed.
3.The orders made by the primary judge on 26 September 2022 are set aside.
4.The matter is remitted for rehearing by a judge other than the primary judge.
5.The Court grants to the appellant 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 appellant in respect of the costs incurred by her in relation to the appeal.
6.The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate…
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- Saso & Saso [2023] FedCFamC1A 65
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- [2023] FedCFamC1A 65
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CaseChat Overview and Summary
The legal issues before the court centre on whether the appellant was denied procedural fairness by being excluded from the hearing without being given the opportunity to address the court on the matter. The court had to determine whether the exclusion of the appellant constituted a material lack of procedural fairness, and whether the appellant should have been provided with an opportunity to present their case or objections before being excluded.
In its reasoning, the court recognised that excluding a litigant from a hearing is a significant action, especially when alternative options were available. The court found that the appellant was not given the opportunity to address the court on the issue of their exclusion, which was a fundamental requirement of procedural fairness. The court concluded that this failure to provide the appellant with the opportunity to be heard was a material lack of procedural fairness. Consequently, the appeal was allowed, and the orders from the original hearing were set aside. The matter was to be remitted for rehearing to ensure that procedural fairness is upheld. Both parties requested that costs be awarded under the Federal Proceedings (Costs) Act 1981 (Cth), and the court agreed that it was just for each party to receive cost certificates for the appeal and the rehearing.
Orders
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