Cantoni & Cantoni
[2022] FedCFamC1A 11
•7 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cantoni & Cantoni [2022] FedCFamC1A 11
Appeal from: Cantoni & Cantoni [2021] FamCA 464 Appeal number(s): EAA 79 of 2021 File number(s): PAC 1840 of 2018 Judgment of: MCCLELLAND DCJ, WILLIAMS & WILSON JJ Date of judgment: 7 February 2022 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Interim property orders – Appellant contends primary judge gave inadequate reasons for rejecting the tender of an expert report when considering an interim application for orders for the sale of a property which is the principle asset of the parties – Leave to appeal granted and appeal allowed – Remitted for re-hearing – Costs certificates granted to the appellant for the appeal. Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia Act2021 (Cth) s 28(3)
Federal Proceedings (Costs) Act 1981 (Cth) s 9
Family Law Rules 2004 (Cth) rr 15.51, 15.52, 15.64B, 15.65
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
1 Pettitt v Dunkley [1971] 1 NSWLR 376
Police Federation of Australia and Another v Nixonand Another (2011) 198 FCR 267; [2011] FCAFC 161
R v McCullagh (No 3) (2007) 179 A Crim R 334; [2007] VSCA 293
Webb v R (1994) 13 WAR 257; 74 A Crim R 436
Number of paragraphs: 37 Date of hearing: 11 November 2021 Place: Sydney (via videolink) Counsel for the Applicant: Mr Todd Solicitor for the Applicant: Khalil Family Lawyers Counsel for the Respondent: Mr McCormack Solicitor for the Respondent: Goldsmiths Lawyers ORDERS
PAC 1840 of 2018
EAA 79 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS CANTONI
Appellant
AND: MR CANTONI
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, WILLIAMS & WILSON JJ
DATE OF ORDER:
7 FEBRUARY 2022
THE COURT ORDERS THAT:
1.Leave to appeal is granted.
2.The appeal is allowed.
3.The orders of the primary judge made 2 July 2021 are set aside.
4.The review of the senior registrar’s orders made 12 March 2021 must be remitted for rehearing by another judge of Division 1 of the Federal Circuit and Family Court of Australia.
5.The Court grants to the appellant a costs certificate pursuant to 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 in respect of the costs incurred by the appellant in relation to this appeal.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (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 Cantoni & Cantoni has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, WILLIAMS & WILSON JJ:
INTRODUCTION
The appellant wife (“the appellant”) seeks leave to appeal from orders made by the primary judge on 2 July 2021 pursuant to which the primary judge ordered the partially constructed development at D Street, Suburb E (“the property”) to be sold.
The property is in a dilapidated condition, as was common ground, subsequent to building works coming to a halt in late 2019. The appellant argued that any sale of the property in its current incomplete state was likely to derive no return to the parties in their s 79 of the Family Law Act 1975 (Cth) application whereas a sale of the property, once building works were completed, would likely generate an amount sufficient to meet all creditors and provide a surplus for division among the parties. The appellant contended that she had arranged with a builder to perform all necessary works so as to complete the development of the property, at a particular price, and who was willing to wait until settlement of the sale of the property before seeking payment for the building works. She also contended that her father would guarantee her obligations under the building contract.
As the orders appealed against are interlocutory, the appellant requires leave to appeal pursuant to s 28(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The test for the grant of leave, set out in Medlow & Medlow (2016) FLC 93-692 is twofold. The application for leave must demonstrate that the first instance decision is attended by sufficient doubt as to warrant appellate interference. Additionally, the applicant for leave must show that substantial injustice would result if leave to appeal were refused, supposing the decision at first instance were wrong (at [57]).
For reasons that are developed below, we are of the view that the twofold test for the grant of leave has been satisfied in this case. That is because the primary judge failed to provide adequate reasons when refusing the appellant leave to rely on the valuation evidence of Ms U as set out in Ms U’s affidavit filed 13 May 2021. That error renders the primary judge’s orders of 2 July 2021 attended by sufficient doubt as to warrant appellate intervention. Substantial injustice will result if leave to appeal is refused.
RELEVANT FACTUAL SETTING
This proceeding was commenced in 2018 yet it has progressed very little distance towards the trial of the parties’ property settlement application. It was common ground that the property is the parties’ major asset. They are joint proprietors.
The appellant and the respondent commenced living together in 1996 or thereabout, they married in 2002 and separated in 2018. They have two children.
Prior to their separation, in 2016 the appellant and the respondent entered into a building contract with F Pty Ltd for the development of the property. In late 2016, F Pty Ltd commenced building works. Following a disagreement between the respondent and F Pty Ltd about the quality of workmanship to that date, in 2017 F Pty Ltd ceased works at the property after which no further payments to F Pty Ltd were made.
In 2018, the appellant commenced property settlement litigation in what was then the Family Court of Australia. On 14 September 2018, orders were made for the appointment of an independent trustee to take control of the completion of building works at the property and to sell the property in its completed state.
On 13 August 2019, the parties agreed to vary the 14 September 2018 orders by consenting to the appointment of Mr J, an architect, to act as the contract administrator for the completion of construction works. Mr J’s involvement in the project ceased in late 2019, since which time works at the property have not progressed. It was common ground that in its current incomplete state, the property is visually unattractive and was described by the primary judge as being rat infested (Transcript 18 May 2021, p.5 line 12).
By Application in a Case filed 28 January 2021, the respondent sought the following orders:
1.That within 21 days of the date of these orders, the parties jointly appoint a real estate agent, to sell the property situate [sic] at [the property] and the property be placed on the market for sale within 30 days of engaging the real estate agent.
2.For the purposes of appointing of a real estate agent, if the parties cannot agree on the appointment of a real estate agent, then either party may write to the President of the Real Estate Institute of Victoria (“REIV”) with a request that a real estate agent be nominated by the President (or his nominee) of the REIV and such nominated real estate agent will sell the [the property].
3.If the President of REIV is unable or unwilling to nominate a real estate agent, then either party can make an application to the Court for the appointment of a real estate agent.
4.The following applies in relation to the sale of the [the property]:
(a)the mode of sale is to be jointly agreed between the parties in writing and in default of agreement as recommended by the selling agent;
(b)the advertising budget is to be jointly agreed between the parties in writing and in default of agreement as recommended by the President of the Real Estate Institute of Victoria on the application of either party;
(c)the reserve price is to be jointly agreed between the parties in writing and in default of agreement as recommended by the President of the REIV on the application of either party;
(d)the conveyancing solicitor is to be Goldsmiths Lawyers; and
(e)the terms of the sale contract will be a 60- or 90-day settlement and otherwise as agreed between the parties in writing.
5.If the President of REIV of is unwilling or unable to do matters listed in paragraph 4, then the Court shall determine those matters.
6.At settlement of the sale of the [the property], the proceeds of sale are to be distributed in the following order and priority:
(a)first, to pay all selling expenses, including the selling agent’s commissions, advertising expenses and conveyancing costs;
(b)second, to discharge the [Bank V] mortgage registered on title to the [the property];
(c)third, to pay any assessed capital gains tax, with an estimated amount to be set aside and held in trust by Goldsmiths Lawyers until such time as an assessment is undertaken by the Australian Taxation Office;
(d)fourth, the balance then remaining to be held on trust by Goldsmiths Lawyers in an interest bearing controlled money account in the names of both parties and not distributed pending written agreement between the parties and/or court order as to its distribution.
7.That pending settlement of the sale of the [the property]:
(a)the parties are to keep the property in at least the same state of repair as at the date of these orders;
(b)the parties shall do all things required of them to facilitate the sale of [the property];
(c)the parties must deliver up possession of the [the property] in vacant possession and in accordance with the terms of the sale contract on or before the due date for settlement of the [the property]; and
(d)neither party shall further encumber the [the property] or draw down on the existing [Bank V] mortgage registered on title without the prior written consent of the other party.
8.All previous orders as to the completion and/or construction of [the property] and the sale of the [the property] are discharged.
9.Liberty to apply
10.Costs reserved
(As per the original)
In her Response to an Application in a Case filed 26 February 2021, the appellant sought the following orders:
1.That pursuant to rule 15.51 of the Family Law Rules 2004 (Cth) the Wife have liberty to rely on the evidence of [Mr B] as to his opinion regarding the value of [the property].
2.In the alternative to order 1, and prior to any interim hearing on the Husband 's Application in a Case filed 1 February 2021, that a single expert be appointed pursuant to rule 15.44 of the Family Law Rules 2004 (Cth) to value [the property] in its current state as well as the value of [the property] if construction is completed to a high standard with all certificates, insurances and warranties in place.
3.That in the event the parties do not agree on a single expert within 7 days of the date of the Order that the Wife nominate three real estate experts within 7 days, and thereafter within 7 days of the nomination the Husband elects one of the nominated experts. Should the Husband fail to nominate an expert within 7 days the Mother is a liberty to elect the single expert from one of the three so nominated.
4.That the cost of the expert shall be paid from the monies in the [Bank V] loan facility, home loan account number95-0902 ('the [Bank V] loan account').
5.That [Mr J] is removed as the contract administrator and trustee for the completion of construction for [the property].
6.That the Wife is appointed as the contract administrator and trustee for the completion of construction for [the property], noting that she will do all things and sign all documents, to:
a.Appoint [Mr L], trading as [K Company] as the builder to complete the incomplete residential building of [the property], including signing a fixed price contract for the sum of $576,340.00.
b.Cause to be paid invoices rendered by [Mr L], up to the sum of $576,340.00, trading as [K Company] from the [Bank V] loan account.
c.Allow a caveat to be placed upon [the property] for an amount owed to [Mr L] equal to the amount of $576,340.00 less the amount already paid from the [Bank V] loan account.
d.Lodge amended plans with [City W Council], including liaising with and signing all documents necessary with [X Company], [Y Company], Victorian Authorities, [Z insurance] and any costs for the amended plans shall be paid from the [Bank V] loan account.
7.That in the alternative to Order 6 above, that the Husband and the Wife do all things and sign all documents, within 48 hours of receipt of any document, with such signed documents to be returned forthwith, to:
a.Appoint [Mr L], trading as [K Company] as the builder to complete the incomplete residential building of [the property], including signing a fixed price contract for the sum of $576,340.00.
b.Cause to be paid invoices rendered by [Mr L], up to the sum of $576,340.00, trading as [K Company] from the [Bank V] loan account.
c.Allow a caveat to be placed upon [the property] for an amount owed to [Mr L] equal to the amount of $576,340.00 less the amount already paid from the [Bank V] loan account.
d.Lodge amended plans with [City W Council], including liaising with and signing all documents necessary with [X Company], [Y Company], Victorian Authorities, [Z insurance] and any costs of the amended plans shall be paid from the [Bank V] loan account.
8.That the Husband and the Wife do all things and sign all documents so that [Mr B] from [C Real Estate] is appointed as the selling agent of the Property.
9.That the Husband pay the Wife's costs.
10.That in the event that either of the parties refuse or neglect to sign any document required by them to be signed, the Registrar of the Court shall be and is hereby empowered to sign such document/s on behalf of that party pursuant to section 106A of the Family Law Act 1975 (Cth).
11.Such further or other Orders as this Honourable Court may consider just and expedient in all the circumstances.
(As per the original)
The respondent’s Application in a Case filed 28 January 2021 came before a senior registrar on 12 March 2021. The appellant applied to adjourn the hearing of that Application. No valuation evidence was before the senior registrar. The appellant’s adjournment application was refused and the senior registrar made orders in accordance with the respondent’s application. The effect of those orders was that the property would be sold forthwith in its partially completed condition for the best price reasonably obtainable.
By Application in a Case filed on 17 March 2021, the appellant sought orders for the review of the senior registrar’s orders made on 12 March 2021. It was common ground that on 19 March 2021, the appellant’s solicitors wrote to the respondent’s solicitors seeking consent for the appointment of a single expert to value the property. On 22 March 2021, the respondent’s solicitors emailed the appellant’s solicitors stating that the respondent did not consent to the appointment of a single expert.
On 26 March 2021, the senior registrar’s orders were stayed pending the determination of the appellant’s Application in a Case for the review of the senior registrar’s orders.
On 29 April 2021, a procedural hearing was conducted at which time the hearing of the review application was fixed for 18 May 2021. The parties were ordered to file any further evidence on which each relied by 12 May 2021.
To her affidavit filed 13 May 2021, Ms U annexed a valuation report of the property “as is” for $2,500,000 (marked DL-1) and a valuation report of the property upon completion for $5,000,000 (marked DL-2).
THE HEARING BEFORE THE PRIMARY JUDGE
The appellant’s solicitor, who appeared before the primary judge, sought leave to rely on the affidavit of Ms U. The primary judge refused that leave. The following, taken from the transcript of the application before the primary judge on 18 May 2021, was the relevant exchange:
[APPELLANT’S SOLICITOR]: Your Honour, I seek leave to rely on the affidavit of [Ms U].
HIS HONOUR: On what basis?
[APPELLANT’S SOLICITOR]: On the basis that she is an adversarial witness and she provides evidence in relation to the.....
[APPELLANT’S SOLICITOR]: She’s not a single expert. Struck out. Next one.
[APPELLANT’S SOLICITOR]: Your Honour, I would like – I have two tender bundles which I would like - - -
HIS HONOUR: Hang on a minute. There’s another affidavit by [Ms U] of 12 May - - -
[APPELLANT’S SOLICITOR]: That’s - - -
HIS HONOUR: - - - in addition to the one of 8 April.
[APPELLANT’S SOLICITOR]: The affidavit of 12 May is signed.
HIS HONOUR: Okay. Well, that is struck out as well.
(Transcript 18 May 2021, p.7 lines 12–34)
It can be seen that the only reasons provided by the primary judge in refusing to allow the appellant to rely on Ms U’s affidavit was that “she’s not a single expert.”
THE AMENDED NOTICE OF APPEAL
In her Amended Notice of Appeal filed 21 October 2021, the appellant substantially reduced the number of grounds of her appeal from seven to three. The Amended Notice of Appeal is as follows:
1.That in dismissing the Appellant’s
oralinterlocutory application brought under Rule15.4915.51 of the Family Law Rules to adduce valuation evidence in respect of the value of [the property] both ‘as is’ and in the event that building and rectification works were completed:a.the primary judge erred in principle in that he failed
to find a special reason existed for grantinggrant the Wife’s application pursuant to Rule15.49(2)(c)15.51 in that:i.the valuation of [the property] on those bases was plainly a matter that bore discrete relevance to the Appellant’s substantive application to cause the remedial works to be completed on [the property], prior to its sale;
ii.the Respondent had earlier refused to join in appointing a single expert to provide valuation evidence in respect of [the property] about these matters;
iii.the Respondent did not seek to rely on any valuation evidence about these matters; and
iv.consequently, there was no other valuation evidence about these matters available in respect of [the property];
b.the trial judge failed to determine (by virtue of the preceding contended errors) that the discretion in rule 15.49(2) had been enlivened; andc.the trial judge erred in principle in that he failed to exercise the discretion pursuant to Rule
15.4915.51 in favour of the Wife’s oral interlocutory application.2.That the primary Judge failed to give any reasons as to the matters in Ground 1.
3.That having regard to the fact that a major issue in the proceedings was the proper assessment of the value of [the property] of the parties both ‘as is’ and on the basis that the building and rectification works were completed, the dismissal of the Appellant’s oral interlocutory application
filed on 19 August 2020under Rule15.4915.51 was an error in that it removed any element of fairness and justice to the Appellant in the substantive proceedings.4.That the primary Judge erred in principle and discretion in finding that the sale of[the property] on the Orders as entered rendered no prejudice to the Caveators on title to the said property, including in the circumstances where:a.any order for the sale of the property will be ineffective while the caveats remain in place;b.there was no evidence that the Caveators or all of them had been provided with procedural fairness of the orders ultimately entered;c.there was no evidence that the caveators will agree to remove the caveats;d.there was, consequent upon the dismissal of the Appellant’s oral application to adduce adversarial valuation evidence, no valuation evidence available to support that finding;e.the Primary Judge placed undue or excessive weight (or he failed to disclose his reasoning sufficiently to permit of an understanding as to how he had regard) to an alleged acknowledgement of the Respondent of an assertion by the Appellant as to the value of [the property] which was not consistent with the valuation evidence sought to be relied upon by her (paragraph 44 Reasons); andf.as a direct consequence, there was no evidence as to whether the debts to the caveators could be satisfied.5.That the Primary Judge erred in fact in that, on the evidence available, he failed to find that there will, upon the sale of [the property] ‘as is’, more likely than not, be no net proceeds of the sale:a.sufficient to meet the asserted caveatable interests registered on title; orb.to adjust between the parties.6.The Primary Judge failed to give adequate weight (or he failed to disclose his reasoning sufficiently to permit of an understanding as to how he had regard) to the following:a.The evidence of the proposed builder is such that:i.The contract for the works, which includes the executed guarantee of the Appellant’s father, is fixed at $711,040;ii.The contract for the works is proposed to be fixed on the explicit basis that there is no provision for contingencies, including latent defects;iii.The contract for the works is proposed to be fixed on the explicit basis that the builder requires no progress payments (and that the builder will finance the build) and will await payment in full of the contract until funds are available from the settlement of the sale of the property;iv.The builder is prepared to enter into the contract on the explicit basis that he does not require any security for the contract, including any caveat, other than to require an order that the fixed price contract would be payable upon settlement of the sale of the property;v.The builder assumes the risk in the preceding premises;b.That, as a consequence of the foregoing, there was no need to secure further monies from the mortgagee or another financial institution for the amount anticipated for the required works;c.As to the evidence of the builder (who is based in South Australia) and the steps he will take in order to become registered as a builder in Victoria (the state in which [the property] is located), and the limited timing and lack of any significant other imposts involved in those steps; andd.That the builder gives evidence that the build itself with be complete within 2 to 3 months, which is not a significant length of time.7.
That, cumulatively and by virtue of the preceding grounds of appeal contended for, the Primary Judge’s discretionary decision miscarried in that the result embodied in his order was plainly wrong and manifestly unjust.(As per the original)
CONSIDERATION
For this appeal to be determined, it is only necessary for us to determine the second ground of appeal, that is, that the primary judge failed to provide adequate reasons.
The parties agreed that no dispute existed about the principles applicable to the adequacy of reasons. At the hearing before us, counsel for the appellant relied only on the decision in Bennett and Bennett (1991) FLC 92-191.
The obligation to give reasons varies with the circumstances of the case (Police Federation of Australia and Another v Nixon and Another (2011) 198 FCR 267 at [67]). The obligation to provide adequate reasons nonetheless applies both to final decisions and also to rulings made in the course of a trial including, relevantly, the admissibility of evidence. While there is generally no need to give detailed reasons when exercising a procedural discretion such as, whether in the context of this case the affidavit of Ms U should have been admitted into evidence, the reasons provided must nonetheless disclose the process of reasoning and allow a party and, indeed, an appellate court, to assess whether the judge has made an error of law (R v McCullagh (No 3) (2007) 179 A Crim R 334; Webb v R (1994) 13 WAR 257).
The primary judge in this matter was placed in an invidious position as a result of the appellant not having complied with the requirements of the then applicable Family Law Rules 2004 (Cth) (“the Rules”). First, the appellant did not file a formal application seeking leave to rely on an adversarial report. Second, the appellant failed to support such an application with an affidavit addressing the requirements of the Rules as required of a party seeking to rely upon an adversarial report. In that respect, r 15.52 of the Rules provided as follows:
15.52 Application for permission for expert witness
(1)A party may seek permission to tender a report or adduce evidence from an expert witness by filing an Application in a Case.
Note 1:A party who files an Application in a Case must, at the same time, file an affidavit stating the facts relied on in support of the orders sought (see subrule 5.02(1)).
Note 2: The court may allow a party to make an oral application (see paragraph (h) in item 3 of Table 11.1 in rule 11.01).
(2)The affidavit filed with the application must state:
a.whether the party has attempted to agree on the appointment of a single expert witness with the other party and, if not, why not;
b.the name of the expert witness;
c.the issue about which the expert witness's evidence is to be given;
d.the reason the expert evidence is necessary in relation to that issue;
e.the field in which the expert witness is expert;
f.the expert witness's training, study or experience that qualifies the expert witness as having specialised knowledge on the issue; and
g.whether there is any previous connection between the expert witness and the party.
…
It is entirely understandable that, in the absence of evidence addressing each of those matters, the primary judge would have been reluctant to accede to the application by the appellant to rely upon the report of Ms U.
It can also reasonably be inferred that there were significant discretionary considerations that may have been relevant to the issue such as, for instance, as noted by the respondent, the fact that the appellant had not proceeded with the application for the appointment of a single expert that had previously been foreshadowed.
Additionally, permitting the appellant to rely upon the report of Ms U in the circumstances of the interim hearing would have deprived the respondent of rights that the respondent had, to ask questions of the witness (r 15.65 of the Rules) and to seek a conference with the witness (r 15.64B of the Rules).
Nonetheless, it remains the case that, as submitted by the appellant, the primary judge did not, in giving reasons for rejection of the report of Ms U, refer to those matters. Instead, the reason provided by the primary judge for rejecting the report of Ms U was solely that she was not “a single expert.”
Those reasons were, with respect to the learned primary judge, inadequate.
The failure of a trial judge to provide adequate reasons makes it impossible for the party aggrieved by the ruling and for an appellate court to determine whether the ruling was based on an error of law and, in those circumstances, the failure to give reasons will itself constitute an error of law (Fleming v The Queen (1998) 197 CLR 250 at 260, citing Pettitt v Dunkley [1971] 1 NSWLR 376).
We are satisfied that such an error of law occurred in this case. In that respect we note that on one construction of that ruling it could be inferred that the primary judge rejected the tender on the basis of admissibility, namely, that a report from an expert other than a single expert was inadmissible in the proceeding. Such a construction would, of course, have been an error of law because r 15.51(1) of the Rules specifically stated that a party “must apply for the court’s permission to tender a report … from an expert witness, except a single expert”.
There is, with respect, some force to the appellant’s argument that having received that ruling on admissibility there was no utility in the appellant adopting another course such as, for instance, potentially exercising a theoretical right to seek an adjournment to place before the Court evidence addressing those matters referred to in r 15.52 of the Rules.
It may well have been the case that the appellant would have had great difficulty in persuading the primary judge that such an adjournment should have been granted in the circumstances of this case. Nonetheless, the appellant was deprived of that right to at least make the application.
In the context of the uncompromising and protracted litigation that has occurred in this matter, we have been troubled as to whether leave should be granted to bring this appeal. This is in circumstances where the appeal may have been avoided had the appellant complied with the requirements of the then applicable rules including r 15.52 of the Rules to which we have referred.
A relevant consideration is, however, the consequences to the appellant if leave is not given. That consequence is significant. If leave to appeal is not granted the subject property will be sold in which event there will be little if any residual assets for distribution to either party. This would have grave consequences for the appellant.
In those circumstances and in circumstances where we have found error on the part of the learned primary judge, we give leave to appeal and uphold the appeal.
DISPOSITION
In our view, the application for leave to appeal must be granted and the appeal must be allowed. It follows that the orders of the primary judge made 2 July 2021 must be set aside and the review of the senior registrar’s orders made 12 March 2021 must be decided by another judge of Division 1 of the Federal Circuit and Family Court of Australia. In allowing the appeal, we recognise that the parties will continue to be embroiled in this litigation. We strongly recommend that the parties make every attempt to resolve this dispute as the case has been on foot since 2018 and it has some distance yet to travel with attendant expenses.
The appeal has succeeded and as such, the appellant should be granted a costs certificate in respect of the appeal pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth). However, where, in the circumstances of this case, we have questioned the utility of the appellant proceeding with a further application we are not satisfied that it is appropriate to grant a costs certificate in respect to a re-hearing.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland, and Justices Williams and Wilson. Associate:
Dated: 7 February 2022
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