Allesch v Maunz [2000] HCA 40

HIGH COURT OF AUSTRALIA

GAUDRON, McHUGH, GUMMOW, KIRBY AND HAYNE JJ

ERNEST FRANZ ALLESCH APPELLANT

AND

BRIGITTE MAUNZ RESPONDENT

Allesch v Maunz [2000] HCA 40

3 August 2000

C15/1999

ORDER

1. Appeal allowed. 2. Set aside the orders of the Full Court of the Family Court dated 26 November 1998. 3. Remit the matter to the Full Court of the Family Court for further hearing and determination in accordance with the reasons of this Court. 4. Each party to bear his or her own costs of the proceedings in this Court.

On appeal from the Family Court of Australia

Representation:

Appellant appeared in person

M D Broun QC for the respondent (instructed by Ken Cush & Associates)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Allesch v Maunz

Family Law – Family Court of Australia – Appeals – Nature of an appeal to the Full Court of the Family Court – Discretion to set aside an order made in the absence of a party – Miscarriage of justice where a party suffers effect of an adverse order and that party's absence adequately explained.

Family Law – Family Court of Australia – Appeals – Appeals by way of rehearing from discretionary judgments – Appellate court seeking to re-exercise discretion by reference to circumstances as they presently exist – Parties must be given an opportunity to adduce evidence as to circumstances as they presently exist in such cases.

Practice and Procedure – Appeal – Discretion to set aside order made in absence of a party.

Words and Phrases – "miscarriage of justice".

Family Law Act 1975 (Cth) s 79A, s 93A(2), s 94

GAUDRON, McHUGH, GUMMOW AND HAYNE JJ. This is an appeal from a decision of the Full Court of the Family Court of Australia (Lindenmayer, Kay and Brown JJ) dismissing an appeal from a decision of Finn J. Her Honour had dismissed an application to set aside orders for property settlement in proceedings between the appellant ("the husband") and his former wife ("the wife"), the respondent to this appeal.