Bader and Spinner - [2019] FamCAFC 152

FAMILY COURT OF AUSTRALIA

BADER & SPINNER

[2019] FamCAFC 152

FAMILY LAW – APPEAL – CONSENT – Where the parties agree that the appeal be allowed, that the orders appealed be set aside, that the matter be remitted for rehearing and costs certificates issue pursuant to ss 9, 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth) – Where appealable error is demonstrated and the appeal should succeed – Where there are a lack of adequate reasons provided by the trial judge – Where the appeal is properly characterised as a Federal appeal, it will succeed on a question of law and it has been listed in a public and formal way – Where the parties have been put to unnecessary expense in pursuing the appeal and the matter must be re-litigated – Appeal allowed – Orders set aside – Proceedings remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the trial judge – Costs certificates issued as sought by the parties.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth) ss 9, 6 and 8

Bhatnagar & Riju [2018] FamCAFC 144
Cramer v Davies (1997) 72 ALJR 146

APPELLANT:

Mr Bader

RESPONDENT:

Ms Spinner

FILE NUMBER:

MLC

6810

2015

APPEAL NUMBER:

SOA

2019

DATE DELIVERED:

3 September 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

3 September 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT ORDER DATE:

5 March 2019
6 March 2019

LOWER COURT MNC:

[2019] FCCA 575

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Tulloch

SOLICITOR FOR THE APPLICANT:

Davis Zucco Lawyers

COUNSEL FOR THE RESPONDENT:

Dr R. Smith

SOLICITOR FOR THE RESPONDENT:

Lennon Lawyers

Orders by Consent

The appeal be allowed.
The orders made on 5 March 2019 and 6 March 2019 by Judge Wilson (as his Honour then was) be set aside.
The Amended Application filed by the respondent on 1 March 2019 and the Application filed by the appellant on 22 February 2019 be remitted to the Federal Circuit Court of Australia for rehearing NOTING THAT the proceedings are now transferred to the Family Court of Australia and thus, in effect, the proceedings will now be re-heard in that Court by a judge other than Wilson J.
The Court grants to the appellant husband 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 husband in respect of the costs incurred by him in relation to this appeal.
The Court grants to the respondent wife 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bader and Spinner

Details

AGLC: Bader and Spinner [2019] FamCAFC 152
Case: [2019] FamCAFC 152
Decision Date: 3 September 2019

CaseChat Overview and Summary

The appeal in Bader & Spinner was brought by Mr Bader against orders made by Judge Wilson in the Federal Circuit Court of Australia. The parties have agreed that the appeal should be allowed, that the orders appealed should be set aside, and that the matter should be remitted for rehearing. The parties have also agreed that costs certificates should be issued in relation to the appeal and the rehearing. The central issue before the Family Court of Australia was whether the appeal by consent should be allowed and whether costs certificates should be granted.

The Court found that an appeal by consent must demonstrate appealable error. It noted the Full Court of the Federal Court's decision in Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy, which held that an appellate court must be satisfied of error when allowing an appeal by consent. In this case, the Court was satisfied that an error had occurred, as the trial judge had failed to provide adequate reasons for his orders. This satisfied the requirement for appealable error. Regarding the costs certificates, the Court found that the appeal was properly characterised as a federal appeal, the appeal succeeded on a question of law, and the court had heard the appeal in a public and formal manner. The Court therefore granted the parties costs certificates as sought.

The Court allowed the appeal, set aside the orders made by the trial judge, and remitted the matter for rehearing by a different judge. The Court also granted the parties costs certificates as sought.

Orders