ADCOCK & ADCOCK
[2014] FamCAFC 138
•29 July 2014
FAMILY COURT OF AUSTRALIA
| ADCOCK & ADCOCK | [2014] FamCAFC 138 |
| FAMILY LAW – APPEAL – Consent orders. FAMILY LAW – COSTS – Costs Certificate. |
| Family Law Act 1975 (Cth) |
Federal Proceedings Costs Act (1981)
| B & B (Costs Certificates) (2007) FLC 93-339 |
| APPELLANT: | Mr Adcock |
| RESPONDENT: | Ms Adcock |
| FILE NUMBER: | AYC | 118 | of | 2011 |
| APPEAL NUMBER: | EA | 45 | of | 2013 |
| DATE DELIVERED: | 29 July 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Murphy & Austin JJ |
| HEARING DATE: | 29 July 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 March 2013 |
| LOWER COURT MNC: | [2013] FMCAfam 248 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lee |
| SOLICITOR FOR THE APPELLANT: | Mr Jeremy Naumann of Walsh & Blair Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Christie |
| SOLICITOR FOR THE RESPONDENT: | Ms Tacita Murell of Farrell Lusher Solicitors |
Orders
IT IS ORDERED BY CONSENT:
That the appeal be allowed.
By way of additional Order to those titled “Amended Pursuant to the Slip Rule” dated 23 March 2013 but made on 29 May 2013, that within 7 days of the date of these Orders the Wife pay the Husband the additional sum of $112,742.71.
AND THE COURT ORDERS:
The appellant be granted 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 him in relation to the appeal.
The respondent be granted a costs certificate pursuant to the provisions of
s 6 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 respondent in respect of the costs incurred by her in relation to the appeal.
THE COURT NOTES:
The Wife will discontinue her costs application in the Federal Circuit Court.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Adcock & Adcock has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 45 of 2013
File Number: AYC 118 of 2011
| Mr Adcock |
Appellant
and
| Ms Adcock |
Respondent
Ex Tempore
REASONS FOR JUDGMENT
AINSLIE-WALLACE J
By Notice of Appeal filed on 18 April 2013 the husband appeals against property settlement orders made by Judge Neville on 22 March 2013. The wife opposed the appeal and sought to maintain the judge’s orders.
Procedural directions were made for the preparation of the appeal and the husband, in compliance with those directions prepared and served the appeal books. Both parties filed summaries of argument and lists of authorities in the appeal.
The appeal was fixed for hearing by the Full Court on 29 July 2014.
Shortly before the hearing, the parties resolved the issue relating to the appeal and asked the Court to make orders by consent disposing of the appeal. The effect of the orders is to allow the appeal and to make an order in addition to those made by the Judge requiring the wife to pay a sum of $112,742.71 to the husband within 7 days of the date of the order.
Neither party sought an order for costs against the other.
The parties sought an order for costs certificates pursuant to s 9 and 6 of the Federal Proceedings (Costs) Act 1981 in respect of the parties’ costs of the appeal.
Costs Certificates
B & B (Costs Certificates) (2007) FLC 93-339 and the judgment of Kirby J in Cramer v Davis (1997) 72 ALJR 146 set out the matters to which a court must have reference in determining whether to grant a costs certificate in an appeal:
1. The matter concerned is a Federal Appeal;
2. The appeal has succeeded on a question of law; and
3. The appeal was heard.
The appeal before us was plainly a Federal Appeal.
Further it has been “heard” by the Court. In Cramer, Kirby J adopted a broad interpretation of the expression “heard the appeal”, finding that the hearing necessary to satisfy the requirement was “no more than having the matter listed before the courts so that it may dispose of the appeal in a public and formal way”. As has been indicated, the appeal books were prepared and filed and each party prepared and filed summaries of argument on the appeal, thus the appeal has been heard in the relevant sense.
Turning then to whether the appeal has succeeded on a question of law, the husband’s notice of appeal raises nine grounds of challenge to his Honour’s determination. In the written summary of argument for the husband, the grounds were distilled into six issues. It was asserted that his Honour’s determination was affected by apprehended bias and that his Honour failed to give adequate reasons for various findings, in particularly the value of cattle. The balance of the grounds challenge his Honour’s findings as to the relative contributions of the parties and, his Honour’s treatment of sums “added back” to the property pool.
Before us, Mr Lee, for the husband argued that the agreement between the parties and the re-adjustment of property by payment of a further order reflected a higher attribution of the value of cattle held by the parties, a concession of a ground of appeal and a re-adjustment of the husband’s entitlement from 21 per cent to 30 per cent. Thus it was argued the appeal has succeeded on a question of law.
While the wife’s summary of argument supports his Honour’s Judgment, before us Counsel for the wife conceded that his Honour’s error as to the relative contributions of the parties was such as to amount to an error of law.
Having considered his Honour’s reasons and the notice of appeal, it is plain that the appeal has merit and the appeal should be allowed. The consent orders sought that allow the appeal and require an additional payment by the wife to the husband are appropriate in light of the assessed merit.
Section 9 of the Costs Act imposes an additional requirement if an appellant is to be granted a costs certificate and that is that the court be satisfied that the matter is one in which, in accordance with s 117 of the Act, each party to the appeal is to bear his or her own costs.
As has been indicated, neither party seeks an order for costs of the appeal against the other. That is appropriate and in this matter, having regard to the merits of the appeal, no order as to costs ought be made against either party.
That being the case, it is a matter in which it is appropriate to grant each party a costs certificate within 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 the payment under that act in respect of the appeal.
MURPHY J
Nothing contained within the written outline of argument filed on behalf of the appellant, nor anything which I have read for myself contained within the record, persuades me that there is any foundation whatsoever to the allegation of apprehended bias on the part of the trial judge.
I am otherwise satisfied, however, that error of law has been established by reference to a miscarriage of the exercise of discretion. In particular, I am satisfied that his Honour’s assessment of contributions falls outside the bounds within which reasonable disagreement is possible.
I am accordingly satisfied that there is an error of law sustaining the agreed position of the parties that the appeal be allowed. It follows that there is an error of law within the meaning of the provisions of the Federal Proceedings (Costs) Act 1981 (Cth). I otherwise agree with the reasons given by the presiding judge and with the orders her Honour proposes.
AUSTIN J
I agree with the orders proposed by Ainslie-Wallace J and with the reasons given by her Honour and the additional reasons given by Murphy J.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Murphy and Austin JJ) delivered on 29 July 2014.
Associate:
Date: 29 July 2014
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