Corcoran and Corcoran

[2017] FamCAFC 33

FAMILY COURT OF AUSTRALIA

CORCORAN & CORCORAN [2017] FamCAFC 33

FAMILY LAW – APPEAL – COSTS – Where the primary judge failed to give reasons for making a costs order – Appeal allowed by consent – Matter remitted for rehearing in the Federal Circuit Court of Australia – Costs certificates issued for the appeal and the rehearing under the Federal Proceedings (Costs) Act 1981 (Cth).

Family Law Act 1975 (Cth) s 94AAA(3)
Federal Proceedings (Costs) Act 1981 (Cth) 6, 8, 9

APPELLANT: Mr Corcoran

RESPONDENT: Ms Corcoran

INDEPENDENT CHILDREN’S LAWYER:	Louise Baker solicitor
FILE NUMBER:	SYC	4787	of		2012

APPEAL NUMBER: EA 199 of 2016

DATE DELIVERED: 16 February 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 16 February 2017

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 22 November 2016

LOWER COURT MNC: [2016] FCCA 2985

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Livingstone

SOLICITOR FOR THE APPELLANT: David H. Cohen & Co

COUNSEL FOR THE RESPONDENT: Ms Wilson

SOLICITOR FOR THE RESPONDENT: SWAAB Attorneys

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Excused from attendance

Orders

1. That the appeal be allowed.

2. Order 14 made on 22 November 2016 is set aside and the question of the costs proceedings as between the appellant and respondent is remitted to the Federal Circuit Court of Australia for rehearing before a judge other than Judge Henderson.

3. There be no order as to costs.

4. That the Court grants to appellant a costs certificate pursuant to 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 him in relation to the appeal.

5. The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 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 respondent in respect of the costs incurred by her in relation to the appeal.

6. The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 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 each of the parties in respect of the costs incurred by them in relation to the new trial ordered.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Corcoran & Corcoran has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 199 of 2016
File Number: SYC 4787 of 2012

Mr Corcoran

Appellant

And

Ms Corcoran

Respondent

REASONS FOR JUDGMENT

1. This is a procedural hearing in relation to the appeal in this matter.  Ms Corcoran (“the respondent”), quite properly, agrees that the appeal must be allowed and the matter remitted for rehearing.  The only issue between the parties is whether it should be remitted to the primary judge or to someone else.  Both parties were in a position to proceed with that aspect of the matter today. 

2. I first note that this appeal was being heard by a single judge pursuant to a direction of the Chief Justice under s 94AAA(3) of the Family Law Act 1975 (Cth). 

3. The basis of the appeal can be stated quite simply.  On 22 November 2016 Judge Henderson made orders and gave reasons in a parenting case between the parties.  The last order was that Mr Corcoran (“the appellant”) pay the respondent’s costs of and incidental to these proceedings. 

4. It is common ground that her Honour gave no reasons for the making of that order.  The giving of reasons is a fundamental obligation of a judge and given the lack of reasons, the appeal must be allowed and the order set aside and remitted for rehearing. 

5. The respondent submits that it is appropriate that Judge Henderson rehear the costs order because she is the best person to determine costs, because as the primary judge she has had the advantage of seeing the witnesses, hearing their submissions and is best placed to determine the conduct of the parties during the hearing, which is relevant to the question of costs.  That is undoubtedly true.

6. The concern is, however, that having made a costs order, there is the appearance that her Honour has already made up her mind about the issue of costs, albeit that she has not given reasons for it.  In answer to that proposition the respondent submits that the making of the costs order and the lack of reasons is due to inadvertence, in that towards the end of the judgment her Honour said that she would accept the respondent’s position – namely, the orders she was seeking.  The respondent’s proposed orders included the cost orders.  That may be the position, but I cannot be satisfied that it, in fact, is.

7. In any event, the perception that her Honour has turned her mind to this issue and come to a view cannot be dispelled.  I consider that I should act in the ordinary course for remitted matters and that the matter should be remitted to a judge other than Judge Henderson, notwithstanding that it will be much more difficult for that judge to deal with the matter.

8. After some discussion, the position emerges that the parties now support the position that I make no order as to costs but issue certificates under the Federal Proceedings (Costs) Act 1981 (Cth) for both the appeal and the rehearing. Whilst there may be some difference of opinion as to whom the matter should be remitted, the appeal has been resolved at this first procedural hearing; therefore I consider it appropriate that there be no order as to costs. However, there has been a clear error of law by the primary judge and the parties should be granted certificates under that Act for both the appeal and the rehearing.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 16 February 2017.

Associate: 

Date:  8 March 2017