Andris & Andris
[2021] FamCAFC 18
•16 FEBRUARY 2021
FAMILY COURT OF AUSTRALIA
Andris & Andris [2021] FamCAFC 18
Appeal from: Andris & Andris [2020] FCCA 919 Appeal number(s): EAA 60 of 2020 File number(s): NCC 3989 of 2017 Judgment of: RYAN J Date of judgment: 19 February 2021 Catchwords: FAMILY LAW - COSTS CERTIFICATES – Application for costs certificates where parties agree errors of law – Appeal determined without oral hearing – Where the parties contributed to the difficulties which underpin the errors made by the trial judge – Application for certificates refused. Legislation: Family Law Act 1975 (Cth) ss 79, 94AAA(3)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9
Cases cited: B & B (Costs Certificates) [2007] FLC 93-339; [2007] FamCA 1177
Ball & Ball (Costs Certificates) [2007] FamCA 1252
Cramer v Davies (1997) 72 ALJR 146
Trask v Westlake (2015) FLC 93-662; [2015] FamCAFC 160
Division: Appeal Division Number of paragraphs: 14 Date of hearing: By way of written submissions Place: Sydney Solicitor for the Appellant: Eleven Legal Pty Ltd Solicitor for the Respondent: O’Hearn Lawyers ORDERS
EAA 60 of 2020
NCC 3989 of 2017APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: Mr Andris
Appellant
AND: Ms Andris
Respondent
ORDER MADE BY:
RYAN J
DATE OF ORDER:
10 FEBRUARY 2021
BY CONSENT, THE COURT ORDERS:
1.That the appeal be allowed.
2.The orders of the primary judge of 22 April 2020 be set aside.
3.There be no orders as to costs for the appeal or the substantive proceedings.
4.The appellant shall pay the solicitor for the respondent for and on behalf of the respondent the sum of $380,000 by 25 February 2021 or within seven (7) days of the making of these orders, whichever is later.
5.Simultaneously with the appellant complying with Order 4, the respondent shall transfer to the appellant all of her right, title and interest in the property situated and known as B Street, C Town being the whole of the land described in Certificate of Title Folio Identifier …5A.
6.That upon compliance with Order 5, the appellant shall indemnify the respondent in relation to outgoings in respect of the property including all rates, taxes, charges and insurance.
7.Except as provided by these orders, the parties are each declared the sole owners in equity and at law to all items of property and financial resources including superannuation, shares, motor vehicles, chattels and money in bank accounts held in their respective names and have no further claim on such property, entitlements or financial resources of the other.
8.The parties are hereby restrained from mortgaging, encumbering, disposing or dealing with their property or financial resources except for the purposes of complying with these orders.
9.Except as provided for by these orders, each of the parties are to remain solely liable for any debt or liability held in their name and, if required, release and indemnify the other party in respect of any debts, liabilities, demands or claims arising from any debt or liability in their name.
10.Both parties shall do all acts and things and sign all documents necessary to comply with and to implement these orders.
11.If either party fails or neglects to sign an document required to give effect to these orders then the Registrar of the Court is appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to sign any such document which a party has failed or neglected to sign.
12.All outstanding applications in the appeals and the substantive proceedings (NCC 3989 of 2017) are hereby dismissed.
DATE OF ORDER:
16 FEBRUARY 2021
IT IS FURTHER ORDERED
1.That the application for costs certificates be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Andris & Andris has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RYAN J:
By Amended Notice of Appeal filed on 28 September 2020, Mr Andris (“the husband”) appealed from orders for the settlement of property made on 22 April 2020 by a judge of the Federal Circuit Court of Australia. Ms Andris (“the wife”) is the respondent to the appeal. The parties, each of whom had legal representation at trial and have legal representation in the appeal, agree that the appeal should be allowed and the orders made by the primary judge be set aside. Furthermore, they are agreed that by way of re-exercise, orders should be made pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) which require the husband to pay $380,000 to the wife and for the wife to transfer to him, her interest in a property at B Street, C Town. The Chief Justice certified that the appeal be determined by a single judge in accordance with s 94AAA(3) of the Act.
The parties understood they would need to satisfy the Court that the primary judge erred and that there is a proper basis for this Court to allow the appeal and the orders set aside. To this end, the parties presented an agreed statement which, in relation to appealable error, records that the parties agree:
1.The Respondent concedes grounds 3 and 4 of the Amended Notice of Appeal. The parties agree that the Trial Judge erred in law in that she failed to apply correct principle in not considering whether by making order 4(v)3. made 22 April 2020 providing for the Respondent to receive a sum certain the orders for adjustment of property were just and equitable in circumstances where:
a.The Trial Judge failed to take into account any potential variation in sale price of the Trust property which might be received from the value found by her at trial, selling costs of the Trust property and taxation consequences upon the sale and trust distribution contemplated by the orders and the effect that those factors might have on the amount to be received by each party; and
b.Whether the consequences of any potential variation in sale price of the Trust property which might be received from the value found by her at trial, selling costs of the Trust property and taxation consequences upon sale and trust distribution contemplated by the orders would result in an outcome different from that which the Trial Judge found was just and equitable, namely an equal division of the parties assets.
The agreed facts tidily encapsulate the difficulty with the orders and her Honour’s failure to take into account that the subject property was a commercial investment and subject to capital gains tax. Furthermore, although the primary judge determined the value of the property, its actual selling price could not be known. These variables needed to be taken into account in the formulation of the orders but they were not (Trask v Westlake (2015) FLC 93-662). This not having occurred, it is accepted that the orders do not give effect to her Honour’s ultimate finding that the parties property should be distributed equally between them.
Thus, it is appropriate that the appeal be allowed and the orders set aside.
It is also appropriate that the orders proposed by the parties on this Court’s re-exercise be made. It is uncontroversial, that over a period of cohabitation spanning 16 years, each of the parties made myriad contributions of the types referenced in s 79(4) of the Act. Although they disagree about the extent of the contributions made by the other party, it is uncontroversial that their respective contributions were significant. It is also uncontroversial that the parties are burdened with suboptimal health, the appellant is ineligible for social income support whereas the respondent is eligible and both wish to avoid incurring further legal costs. Furthermore, the parties total property is of modest value, the land on which the C Town property stands is contaminated which will cause real difficulties if it is sold and finally there are issues which arise from the trust arrangements put in place by the appellant. Each party has already incurred considerable legal costs and are loathe to incur more. Against this background they have chosen to resolve their financial dispute. The agreement reflects an obvious compromise of the claims each makes against the other. Importantly, these informed compromises are made with each party having the benefit of legal advice and representation. In these circumstances I am satisfied that it is just and equitable to make a property adjustment order and that the orders can properly be made.
The parties ask that orders be made by consent for the issuance of costs certificates in accordance with ss 6 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Federal Proceedings (Costs) Act”). Cases such as Ball & Ball (Costs Certificates) [2007] FamCA 1252 and B & B (Costs Certificates) [2007] FLC 93-339 establish that the issue of costs certificates cannot be the subject of consent and thus, requires determination by the court.
Section 6 of the Federal Proceedings (Costs) Act provides:
(1)Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.
(2)Subject to this Act, where a Federal appeal in relation to the amount of damages awarded by a court succeeds, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.
(3) The certificate that may be granted under sub-section (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent in respect of—
(a)the costs incurred by the respondent in relation to the appeal; and
(b)any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates.
Section 9 is to similar effect.
In Cramer v Davies (1997) 72 ALJR 146 (“Cramer”), Kirby J identified three preconditions for the grant of a costs certificate under s 6 of that Act. Namely, the existence of a “federal appeal”, that the appeal succeeded on a question of law and that the relevant court should have heard the appeal. As to the latter, Kirby J agreed with the submission made on behalf of the respondent in that case that the requirement for a “hearing” meant no more than having the matter listed before the court so that the appeal may be disposed of “in a public and formal way”. This is what happened in Cramer, where in advance of the scheduled hearing, the High Court convened to dispose of the appeal by consent and without requiring an appearance by any of the parties.
In settling on this approach to the meaning of the word “hearing”, Kirby J at 150 said:
2.The Court did in fact “hear” the appeal in the sense of hearing and granting the application for special leave and having the appeal listed before it. It had before it the affidavit of Mr Wells filed, as stated, with the knowledge of all parties and of the separate representative. If the Court had itself any doubts as to the order that was being sought it could have indicated what those doubts were and even required the matter to proceed to a longer hearing of some kind. The inference was that the Court was satisfied that the appeal should be allowed. That satisfaction was, so it was suggested, sustained by the successful special leave application, which stands at the gateway of proceedings in this Court and by the material put before the Court to support the consent orders.
On the approach adopted in Cramer, the parties in this case might not be eligible to receive a certificate. However, Kirby J was not asked to consider the question of whether a hearing undertaken in chambers with the parties’ consent might satisfy the requirements of the provision. In this case, the appellant filed the appeal book and a Summary of Argument in support of the appeal. Following those steps, the respondent agreed with the arguments advanced in the appeal in so far as they concerned Grounds 3 and 4. That agreement was reduced to writing and the Court was presented with signed terms of settlement and a statement of agreed facts for its consideration. The parties were content for the disposition of the appeal in accord with their agreement, be determined in chambers. In other words, for the appeal to be determined by a hearing on the papers in chambers. If the Court had any doubts about the disposition of the appeal, a more substantial hearing could have been arranged. Of course, that would require additional expense for the parties and the Court.
Although I have not had the benefit of submissions on the point, I am not inclined to agree that the word “hearing” as used in the provision is restricted to a hearing in open court and that it excludes a hearing undertaken on the papers and/or in chambers.
The effect of this is that the parties have established each of the requirements for a certificate. However, I am not satisfied that certificates should issue. This is because, to a considerable degree, the parties themselves contributed to the difficulties which underpin the errors made by her Honour. For example, the minutes of order proposed by each of them did not descend into the level of detail required by the particular circumstances. Moreover, there was but passing reference to capital gains tax issues and no serious attempt was made to provide even a ballpark figure as to the likely range for capital gains tax.
The applications for certificates will thus, be refused.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ryan. Associate:
Dated: 19 February 2021
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