Appeal Dismissed in Family Law Property Settlement Case on Grounds of Procedural Fairness

Kemper & Kemper [2023] FedCFamC1A 96 (21 June 2023)

The case of Kemper & Kemper deals with an appeal against a property settlement order in a family law matter. The husband, Mr. Kemper, lodged the appeal alleging procedural unfairness during the trial and inadequacy of reasons given by the primary judge.

Facts:

The couple separated after roughly 30 years of marriage, with one adult child. The main asset was a property held by a company where the husband and his late father were shareholders. After separation, the husband sold some of the company's water access licenses without notifying his wife, which led to a breach of court orders. He also failed to comply with orders to file necessary material for the final hearing and rejected the judge's invitation to make submissions.

IRAC Analysis:

Issue: The primary issue in this case was whether the trial judge failed to afford Mr. Kemper procedural fairness during the final property settlement orders, which resulted in an unequal distribution of assets favoring Ms. Kemper.

Rule: Procedural fairness or natural justice is a fundamental principle of Australian law, which requires a fair and unbiased hearing. It was considered under Family Law Act 1975 (Cth) s 117 and case laws such as Kioa v West (1985) 159 CLR 550; [1985] HCA 81 and Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27.

Application: In this case, Mr. Kemper argued that he was denied procedural fairness as he was not allowed to put forward relevant material and make submissions in support of his case. However, the court found that Mr. Kemper had sufficient opportunity to file his materials and make submissions but failed to do so. His non-compliance with court orders, including the refusal to file material and declining the judge's invitation to make submissions resulted in the hearing proceeding on an undefended basis.

The court also rejected Mr. Kemper's claim that the trial judge should have explained possible ways for him to counteract his deliberate failure to file material. The court noted that he had already sought an adjournment through previously filed affidavits and could reasonably be expected to understand that he could request it again.

In terms of the argument regarding references made by the primary judge to Mr. Kemper's earlier material, the court held that there was no procedural unfairness as these were factually correct references based on previously submitted documents.

Finally, regarding order 14, which required Mr. Kemper to pay any shortfall if the proceeds from selling property were insufficient, it was found that this did not constitute a procedural unfairness. The court noted that Mr. Kemper had every opportunity to be heard on this matter.

Conclusion: The court concluded that Mr. Kemper was given adequate opportunity to present his case but failed to do so, and the trial judge did not fail in providing him procedural fairness. Therefore, the appeal was dismissed and costs were ordered in favour of Ms. Kemper.

Lesson Learned: This case emphasizes the importance of complying with court orders and actively participating in legal proceedings. Failure to do so can result in a party losing the opportunity to present their case fully, potentially leading to unfavorable outcomes. It also underlines that courts are unlikely to find procedural unfairness where parties have been given ample opportunity to participate but fail or refuse to do so.

Details of Parties:

- Appellant: Mr. Kemper, represented by Ms Judge from Long Saad Woodbridge Lawyers.

- Respondent: Ms Kemper, represented by Mr Moore from Mills Hebbard Moore.