CABALLES & TALLANT

[2015] FamCAFC 86

FAMILY COURT OF AUSTRALIA

CABALLES & TALLANT [2015] FamCAFC 86

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS CERTIFICATES – Where the appellant seeks a cost certificate in respect of costs incurred in obtaining the transcript of the hearing before the trial judge and preparing the appeal book – Where it is appropriate that a costs certificate issue – Where the respondent has no objection to the application and does not wish to be heard – Costs certificate granted.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth) – ss 9 and 12

APPELLANT: Mr Caballes

RESPONDENT: Ms Tallant

FILE NUMBER: BRC 5038 of 2010

APPEAL NUMBER: NA 69 of 2013

DATE DELIVERED: 18 May 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: In chambers

JUDGMENT OF:	Strickland J
LOWER COURT JURISDICTION:	Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 18 October 2013

LOWER COURT MNC: [2013] FCCA 1930

REPRESENTATION

FOR THE APPELLANT:	By written submission
FOR THE RESPONDENT:	By written submission

Orders

1. The Court grants to the appellant a costs certificate pursuant to the provisions of 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 the appellant in relation to the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Caballes & Tallant 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 ADELAIDE

Appeal Number: NA 69 of 2013
File Number: BRC 5038 of 2010

Mr Caballes

Appellant

And

Ms Tallant

Respondent

REASONS FOR JUDGMENT

1. On 27 June 2014 this Court delivered the reasons for judgment and made orders in relation to this appeal.  In summary, we allowed the appeal, set aside certain orders made by Judge Baumann on 18 October 2013, remitted the appellant father’s contravention application to the Federal Circuit Court of Australia for rehearing, and by consent varied one order made by the trial judge.

2. At the hearing of the appeal on 10 April 2014 both parties appeared without legal representation, and neither of them made an application in relation to costs or for the issuing of costs certificates pursuant to the Federal Proceedings (Costs) Act1981 (Cth) (“the Costs Act”), depending on the result of the appeal.

3. On 2 April 2015 the appellant father, who was successful in the appeal, filed an application in an appeal seeking an extension of time “to apply for a cost certificate” and seeking such a certificate.

4. In an affidavit filed also on 2 April 2015 in support of that application, the appellant father explained that he was unaware that to obtain a costs certificate he needed to apply for one to issue, that upon enquiry of the Attorney-General’s Department he was subsequently alerted to this requirement, and that prompted him to make the application.

5. The appellant father further explained in his affidavit that although he had no legal costs he would want to recover the cost of obtaining the transcript and the cost of preparing the appeal book.

6. Pursuant to s 12 of the Costs Act, the jurisdiction conferred on a court by that Act to grant costs certificates may be exercised by a member of that court sitting in chambers, and I am determining the application on that basis.

7. There is no time limit prescribed in the Costs Act to make an application, and thus there is no need to seek an extension of time as the appellant father has, but plainly in the exercise of the discretion to grant or not grant a costs certificate, any delay in bringing an application would need to be taken into account. In this instance, the appellant father has adequately explained in his affidavit why he has taken the time he has to file his application, and that circumstance cannot stand in the way of making the order that he seeks.

8. Separate to that, pursuant to s 9 of the Costs Act, where a federal appeal succeeds on a question of law, and each party to the appeal is to bear his or her own costs, this Court may grant a costs certificate in respect of the appeal to the appellant. Here, these conditions are satisfied, and I consider it appropriate that a costs certificate issue.

9. I note that the application in an appeal and the affidavit in support have been served on the respondent mother, and she has informed the Appeal Registrar that she has no objection to the application and she does not wish to be heard.

10. Finally, I observe that there is no application by the appellant father for a costs certificate in relation to the rehearing ordered by this court, but in any event, in the circumstances I would not be disposed to grant such a certificate.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 18 May 2015.

Legal Associate: 

Date:  18 May 2015