FAMILY COURT OF AUSTRALIA
| ZANE & ALLAN | [2008] FamCAFC 115 |
| FAMILY LAW – LEAVE TO APPEAL – Leave granted to appeal against Orders made by a judge that the final hearing be heard on an undefended basis FAMILY LAW – APPEAL – UNDEFENDED HEARING – Whether the trial judge erred in making Orders allowing a final property settlement hearing to be heard on an undefended basis FAMILY LAW - APPEAL – HELD (per Finn and Thackray JJ, May J dissenting) that the appeal be allowed – Orders allowing undefended hearing set aside – Respondent wife’s property settlement application remitted for rehearing FAMILY LAW - COSTS – Cost certificate for the appellant pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 - Cost certificate for the respondent pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 – Cost certificate for appellant and respondent pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 |
| Family Law Act 1975 (Cth) Family Law Rules 2004 - Rule 11.02(2)(c) |
| Abbott and Abbott (1995) FLC 92-582 |
| APPELLANT: | MR ZANE |
| RESPONDENT: | MRS ALLAN |
| FILE NUMBER: | SYF | 6790 | of | 2000 |
| APPEAL NUMBER: | EA | 98 | of | 2005 |
| EA | 58 | of | 2006 |
| DATE DELIVERED: | 31 July 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, May, Thackray JJ |
| HEARING DATE: | 28 June 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 August 2005 & 11 April 2006 |
| LOWER COURT MNC: | [2005] FamCA 905 [2006] FamCA 285 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Broun QC |
| SOLICITOR FOR THE APPELLANT: | Luminous Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Lloyd |
| SOLICITOR FOR THE RESPONDENT: | Paul & Paul Lawyers |
Orders
(1)That the application for leave to appeal the order made on 16 August 2005 that the matter be set down for hearing as an undefended final hearing for one day as soon as possible (“the order for an undefended hearing”) be granted.
(2)That the appeal against the order for an undefended hearing made on 16 August 2005 be allowed.
(3)That the order for an undefended hearing made on 16 August 2005 be set aside.
(4)That the appeal against the orders made on 11 April 2006 be allowed.
(5)That the orders made on 11April 2006 be set aside.
(6)That the application for property settlement filed by the wife on 1 September 2000 be remitted for hearing by a judge other than the Honourable Justice Le Poer Trench.
(7)That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act
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- Zane & Allan [2008] FamCAFC 115
- Case
- [2008] FamCAFC 115
- Decision Date
CaseChat Overview and Summary
The court found that the Family Court did not have the jurisdiction to proceed with an undefended hearing as it contravened the principles of natural justice and the requirement for both parties to be present. The court also determined that the orders made on property settlement were not just and equitable because they did not adequately consider the husband’s position and contributions. The court emphasised the importance of fairness and the need for both parties to be heard in family law proceedings. Consequently, the court granted the husband’s appeal, set aside the orders, and remitted the application for property settlement to be heard by a different judge.
The court ordered that the application for leave to appeal be granted and that the appeals against the orders be allowed. The order for an undefended hearing and the subsequent orders made on property settlement were set aside. The application for property settlement was to be heard by another judge, ensuring impartiality. Additionally, the court issued costs certificates under the Federal Proceedings (Costs) Act 1981 to both parties, recognising the costs incurred during the appeals and the new trial. The husband was granted a certificate for costs related to the appeals, while the wife received a certificate for costs related to the same appeals. Both parties also received certificates for costs related to the new trial, to be determined by the Attorney-General.
Orders
Orders of the court
(1) That the application for leave to appeal the order made on 16 August 2005 that the matter be set down for hearing as an undefended final hearing for one day as soon as possible (“the order for an undefended hearing”) be granted.
(2) That the appeal against the order for an undefended hearing made on 16 August 2005 be allowed.
(3) That the order for an undefended hearing made on 16 August 2005 be set aside.
(4) That the appeal against the orders made on 11 April 2006 be allowed.
(5) That the orders made on 11April 2006 be set aside.
(6) That the application for property settlement filed by the wife on 1 September 2000 be remitted for hearing by a judge other than the Honourable Justice Le Poer Trench.
(7) That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 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 husband in respect of the costs incurred by the appellant husband in relation to the appeal against the order for an undefended hearing made on 16 August 2005 and the appeal against the orders made on 11 April 2006.
(8) That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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 wife in respect of the costs incurred by the respondent wife in relation to the appeal against the order for an undefended hearing made on 16 August 2005 and the appeal against the orders made on 11 April 2006.
(9) That the Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 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 new trial granted by these orders.
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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