ALFORD & ALFORD - [2015] FamCAFC 100

FAMILY COURT OF AUSTRALIA

ALFORD & ALFORD

[2015] FamCAFC 100

FAMILY LAW – COSTS – Costs Certificates – Where the appeal was finalised by consent – Where the Full Court satisfied itself, upon reading the appeal record, that an appealable error had been established – Whether the Full Court had “heard the appeal” for the purposes of granting each of the parties a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Where the Full Court found that “hearing” the appeal for present purposes meant “no more than having the matter listed before the Court so that it may dispose of the appeal in a public and formal way” in accordance with the authority in Cramer & Davies (1997) 72 ALJR 146.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

B & B (Costs Certificates) (2007) FLC 93-339

Ball & Ball (Cost Certificates) [2007] FamCA 1252

Cramer v Davies (1997) 72 ALJR 146
Johnson v Johnson (2000) 201 CLR 488
Re F: Litigants in Person Guidelines (2001) FLC 93-072

APPELLANT:

Ms Alford

RESPONDENT:

Mr Alford

FILE NUMBER:

BRC

2363

2013

APPEAL NUMBER:

2014

DATE DELIVERED:

27 May 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Murphy and Aldridge JJ

HEARING DATE:

27 May 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

18 August 2014

LOWER COURT MNC:

[2014] FCCA 2057

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Blaxland
Direct Brief

COUNSEL FOR THE RESPONDENT:

Mr Catt

Direct Brief

Orders

IT IS ORDERED BY CONSENT:

The Appeal be allowed.
The orders of Judge Howard made 23 October 2014 be set aside.
The Application in an Appeal filed by the husband on 12 May 2015 for Leave to Cross Appeal out of time be dismissed.

IT IS ORDERED

The Initiating Application filed by the husband on 28 March 2013 be remitted for re-hearing in the Federal Circuit Court by a judge other than Judge Howard.
The Court grants to the appellant wife a costs certificate pursuant to the provisions s 9 of the Federal Proceedings (Costs) Act1981 (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.
The Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (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 him in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (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 each of the parties in respect of the costs incurred by the appellant and respondent in relation to the rehearing of the application.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Alford & Alford 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 BRISBANE

Appeal Number: NA 67 of 2014
File Number: BRC 2363 of 2013

Ms Alford

Appellant

And

Mr Alford

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

MURPHY J

Yesterday afternoon, on the eve of the hearing of this appeal, this Court was informed through the Appeals Registrar that the parties to the appeal had arrived at an agreed position as to its disposition.
The parties had also agreed through their respective counsel that we should be handed a minute of the orders proposed to be made with the consent of the parties and a further document headed “Joint Submissions of the Parties”. The Appeals Registrar made those documents available to each of us.
The proposed orders provide for the appeal to be allowed and the orders for settlement of property made by Judge Howard on 23 October 2014, after a trial conducted on 18 August 2014, be set aside. The proposed orders also provide for the husband’s application for settlement of property to be remitted to the Federal Circuit Court for rehearing before a judge other than Judge Howard.
By an Application in an Appeal filed out of time by the husband on 12 May 2015, he sought an order extending time for him to file a cross-appeal, an adjournment of the proceedings thereby joined and leave to adduce additional evidence in support of the cross-appeal. Many of the grounds of that cross-appeal, particularly insofar as they relate to what might broadly be called procedural fairness issues, emanate from the manner in which the trial was conducted by his Honour. That trial involved two self-represented litigants. The grounds of the cross-appeal mirror those in the wife’s Notice of Appeal. The parties’ minute of orders provide for that application to be dismissed.
The parties’ minute of orders also provides for each of the appellant wife and respondent husband to receive costs certificates in respect of the appeal pursuant to respectively ss 9 and 6 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Act”) and for both parties pursuant to s 8 of that Act in respect of the retrial.
The orders allowing the appeal are founded on submissions that his Honour’s orders are attended by errors of law. It is submitted that the trial conducted by his Honour, which, as I have said, involved two then self-represented parties, miscarried.
By reference to the decisions of this Court in Johnson v Johnson (2000) 201 CLR 488 and Re F: Litigants in Person Guidelines (2001) FLC 93-072, the parties agree upon eight contentions by which they assert that guidelines relevant to trials involving self-represented litigants were not met.
The parties also contend jointly for enumerated discretionary errors, including a failure to take account of relevant considerations (including particularly the wife’s health issues). They also jointly assert an error of law by reason of the inadequacy of his Honour’s reasons.
A reading of the transcript of the trial proceedings, the balance of the appeal record and the reasons for judgment establish, as far as I am concerned, that the parties’ contention that the trial process thereby evidenced miscarried is well made. All of the challenges to his Honour’s orders are, in my view, well made out and establish an error of law.
The establishment of such an error is a precondition to the granting of the costs certificates for which each of the parties applies. So, too, is the necessity for the appeal before this Court to be a “Federal appeal” as defined, which it plainly is. (See subparagraph (ja) of the definition of “Federal appeal” in section 3 of the Act).
However, as emerges from the judgment of Kirby J in Cramer v Davies (1997) 72 ALJR 146 and from the decisions of this Court in B & B (Costs Certificates) (2007) FLC 93-339 and Ball & Ball (Cost Certificates) [2007] FamCA 1252, ss 6 and 9 of the Act each require, in addition, that “the court concerned should have ‘heard the appeal’”. Kirby J held that a broad construction should be given to that expression. As the two decisions of this Court to which I have just made reference make clear, that approach has respectfully been adopted in this Court. The result is that the requirement for this Court to have “heard the appeal” within the meaning of the relevant sections “means no more than having the matter listed before the Court so that it may dispose of the appeal in a public and formal way”.
As the presiding judge has indicated during interchanges with counsel at the outset of this appeal, each of the parties has complied with the relevant requirements with respect to the filing of outlines of arguments and the like. The matter can be seen to have been listed before the Court “so that it may dispose of the appeal in a public and formal way” and the parties can be seen to have complied with their obligations to have the appeal heard in that way.
As a result, the three conditions to which I have referred are accordingly met. As a consequence, the statutory preconditions to the grant of a costs certificate to the respondent in respect of the appeal and to both parties in respect of the new trial have been met.
For a costs certificate to issue to an appellant in respect of the costs of the appeal, a further precondition is necessary. Section 9 requires, in addition to the matters just discussed, that, in accordance with s 117 of the Family Law Act 1975 (Cth), each party to the appeal should bear their own costs. No specific written submissions are made by the parties in that respect, but it seems to me implicit within those submissions and the orders sought that this is the result for which both parties contend jointly.
The circumstances in which this appeal succeeds, including primarily the challenges to the trial process involving two self-represented litigants, which, in my view, are plainly made out, and the modest financial circumstances of the parties, persuade me that the provisions of s 117(1) should apply.
As a result, all of the statutory preconditions for the grant of the costs certificate sought by the appellant in respect of the costs of the appeal are also satisfied. Consequently, all of the statutory preconditions necessary for the grant of costs certificates both to the appellant and the respondent in respect of both the appeal and the new trial are satisfied.
The grant of costs certificates is discretionary. No circumstances apparent to me from the record, including, for example, the assets and financial circumstances generally of the parties, nor any of their conduct in the conducting of the trial or in this appeal, suggests that I would not exercise my discretion to grant each of the costs certificates sought by the parties. Indeed, the circumstances of this case and, in particular, the manner in which the trial was conducted by the judge below, point clearly to the opposite conclusion.
The minute of orders contemplate the making of procedural orders. As her Honour the presiding judge also indicated during the course of interchanges with counsel at the outset of the appeal, the procedural orders sought for the filing of affidavits and, indeed, all other procedural orders, together with any other directions necessary for the rehearing of the matter, are issues that should be left for determination by the Federal Circuit Court. I would not, then, make the orders for directions contemplated by paragraphs 5 and 6 of the minute of orders.
For my part, I would make the following orders by consent: (1) that the appeal be allowed; (2) the orders of Judge Howard made 23 October 2014 be set aside; (3) the husband’s application for leave to cross-appeal out of time be dismissed. And I would otherwise order: (4) that the application of the husband filed 28 March 2013 be remitted for rehearing to the Federal Circuit Court of Australia by a judge of that Court other than Judge Howard. I would order that the Court grant to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act in the usual terms. I would similarly order that the Court grant to the husband a costs certificate pursuant to s 6 of that Act and to both parties for the retrial pursuant to s 8 of that Act in the usual terms of those orders.

ALDRIDGE J

I agree with the orders proposed and the reasons for them.

MAY J

I also agree with the reasons provided by Murphy J and would make the same orders.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 27 May 2015.

Associate:

Date: 2 June 2015