BAAM & BAAM

[2011] FamCAFC 47

FAMILY COURT OF AUSTRALIA

BAAM & BAAM [2011] FamCAFC 47

FAMILY LAW - APPEAL – Matter settled by way of consent – Where it was agreed an error of law was made – Appeal allowed.

FAMILY LAW - COSTS – Where there had not been a full hearing of the submissions on appeal – Where there were proper arguments to be agitated on appeal – Costs certificates ordered for each party under the appropriate sections of the Federal Proceedings (Costs) Act 1981 (Cth).

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

B & B (Costs Certificates) (2007) FLC 93-339
Ball & Ball (Costs Certificates) [2007] FamCA 1252

APPELLANT: Mrs Baam

RESPONDENT: Mr Baam

FILE NUMBER: BRM 2207 of 2001

APPEAL NUMBER: NA 76 of 2010

DATE DELIVERED: 10 March 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: May J

HEARING DATE: 10 March 2011

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 11 June 2010

LOWER COURT MNC: [2010] FMCAfam 676

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Green

SOLICITOR FOR THE APPELLANT: Legal Aid Queensland

SOLICITOR FOR THE RESPONDENT: Neumann & Turnour Lawyers

Orders

IT IS ORDERED BY CONSENT:-

1. The appeal NA76 of 2010 is allowed.

2. The orders of 11 June 2009 be set aside, except in so far as the order impliedly sets aside or discharges order 1 of the orders of 21 April 2009.

3. That the matter be remitted for re-hearing by a Federal Magistrate other than Federal Magistrate Burnett.

4. That there be no order as to costs of and incidental to the appeal and the 11 June 2010 hearing.

IT IS FURTHER ORDERED:-

1. The Court grants to the appellant a costs certificate pursuant to section 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 wife in respect of the costs she has incurred in relation to the appeal.

2. The Court grants to the respondent a costs certificate pursuant to section 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 husband in respect of the costs he has incurred in relation to the appeal.

IT IS REQUESTED:-

1. That the matter be listed for mention in the Federal Magistrates Court as soon as possible.

IT IS NOTED that publication of this judgment under the pseudonym Baam & Baam is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 76 of 2010
File Number: BRM 2207 of 2001

Mrs Baam

Appellant

And

Mr Baam

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. A notice of appeal was filed by the wife on 9 July 2010. An amended notice of appeal was filed on 8 December 2010.

2. These appeals were from orders made by Federal Magistrate Burnett on          11 June 2010, where his Honour dismissed an application filed on                   31 May 2010.

3. His Honour ordered that the respondent resubmit a form of order precisely reflecting the “Heads of Agreement” dated 7 April 2009, within 14 days of the date of the order and that the Registrar of the Federal Magistrates Court of Australia execute any documents required to be executed by the wife in the event of complaint of the husband of the wife’s failure to execute any document within seven days. Evidence of any such omission could be provided by the husband’s solicitor in any affidavit in support of information or belief. It was further ordered that the wife pay the husband’s costs of and incidental to the application filed 21 April 2009 on a standard basis to 15 October 2009 and thereafter on an indemnity basis.

4. Quite properly, as I perceive it, the parties have agreed that the appeal should be allowed. Mr Green, counsel for the appellant, has outlined to me the essential submissions as he appreciates it, in the wife’s case and the husband agrees that there is appealable error, particularly as articulated in ground 1. This ground states:

   The learned Federal Magistrate erred in determining that the document headed “Heads of Agreement” and dated 7 April 2009 formed a binding and enforceable agreement capable of disposing of the Appellant’s then extant application for spouse maintenance; without determining the application under the applicable provisions of the Family Law Act 1975, specifically sections 72, 74 and 75.

5. Mr Green set out a comprehensive argument in his written submissions, which I must say has been extremely well prepared by him. It is unnecessary for me to say very much about this matter as the parties have agreed that the appeal be allowed, except to observe that although I have not heard the full argument in the matter the submissions of Mr Green seem to be entirely correct.

6. I am therefore prepared to make the orders that the appeal be allowed and that the orders be set aside, except so far as the order impliedly sets aside or discharges order 1 of the order of 21 April 2010. The matter clearly needs to be remitted for re-hearing by another Federal Magistrate, and there should be no order as to costs of the appeal and the 11 June 2010 hearing.

7. The only matter which I need to consider further is an application by each party for a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). Based on the submissions of Mr Green, I am satisfied that the requirements have been met for the grant of a certificate to both the wife and the husband.

8. It has sometimes been contended that where parties have agreed that an appeal be allowed a question arises as to whether a certificate should be granted. In this case it is clear there were matters that need to be agitated before me and I have indicated that it is correct that the appeal should be allowed.

9. To the extent that I need to consider this question further, it is clear that this court has made a number of orders under the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) allowing for costs certificates where there has not been a full hearing (see: Ball & Ball (Costs Certificates) [2007] FamCA 1252 and B & B (Costs Certificates) (2007) FLC 93-339).

10. In the circumstances of this case, in my view an order for certificates should be made.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 10 March 2011.

Associate: 

Date:  10 March 2011