Costa & Costa

[2022] FedCFamC1A 206

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Costa & Costa [2022] FedCFamC1A 206   

Appeal from:	Costa & Costa [2022] FedCFamC2F 926
Appeal number(s):	NAA 174 of 2022
File number(s):	BRC 5770 of 2018
Judgment of:	ALDRIDGE J
Date of judgment:	8 December 2022
Catchwords:	FAMILY LAW – APPEAL – PROPERTY – Where the parties agree that the appeal should be allowed – Where the primary judge took into account material that was not before his Honour when dealing with significant issues – Where the Court is satisfied that there is an appealable error – Appeal allowed – Orders set aside – Matter remitted for rehearing – Costs certificates granted.
Legislation:	Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited:	Bhatnagar & Riju [2018] FamCAFC 144
Number of paragraphs:	9
Date of last submissions:	1 December 2022
Date of hearing:	Heard by way of written submissions
Place:	In Chambers
Counsel for the Appellant:	Mr Anderson
Solicitor for the Appellant:	Simonidis Steel Lawyers
Solicitor for the Respondent:	KLM Solicitors

ORDERS

NAA 174 of 2022
BRC 5770 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR COSTA

Appellant

AND:

MS COSTA

Respondent

order made by:	ALDRIDGE J
DATE OF ORDER:	8 december 2022

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The orders made on 14 July 2022 are set aside.

3.The matter is remitted to the Federal Circuit and Family Court of Australia (Division 2) for rehearing by a judge other than the primary judge.

4.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 the appeal.

5.The Court grants to the respondent a costs certificate pursuant to 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 the respondent in respect of the costs incurred by the respondent 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) 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 each of them in respect of costs incurred by them in relation to the new trial ordered.

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).

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

REASONS FOR JUDGMENT

ALDRIDGE J:

1. This is an appeal against property settlement orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 14 July 2022.

2. The parties have agreed that the primary judge erred in a substantial way and that the matter should be remitted. The appeal court must, nonetheless, be satisfied that there is an appealable error and cannot merely rely on the parties’ agreement to make such orders. See Bhatnagar & Riju [2018] FamCAFC 144 at [3]–[7].

3. In his reasons, the primary judge referred to and relied on the evidence of Mr YY and Mr TT to support findings sought by the respondent (at [53], [61] and [62]). Their evidence was described by his Honour as unchallenged.

4. The difficulty is that whilst the affidavits of the two witnesses were listed in the respondent’s Case Outline filed on 28 February 2022 as affidavits to be read by her, her counsel eschewed any reliance on them during the hearing. He indicated that he was relying only on the respondent’s own affidavits (Transcript 11 April 2022, p.17 lines 18– 31; p.20 lines 16–24).

5. The evidence of the two witnesses was not referred to in the respondent’s Written Submissions filed on 3 May 2022 (no oral submissions were made).

6. Thus, the primary judge erred by taking into account evidence that was not before him. This error was compounded because the evidence was described as unchallenged. It is clear that the witnesses would have been cross-examined by the appellant had their affidavits been read (Transcript 11 April 2022, p.23 line 34–40).

7. The appellant also contends that he was denied the opportunity to cross-examine Mr XX. An affidavit made by him was filed by the respondent but, for the reasons just explained, ultimately she did not rely on his evidence. As he did not give evidence, there was no entitlement to cross-examine.

8. However, it follows that the primary judge took into account material that was not before him when dealing with significant issues. The appeal must be allowed and the matter remitted for rehearing.

9. The error is one of law and was not induced by the parties. It is appropriate therefore that there be costs certificates for both parties for the appeal and the rehearing under the Federal Proceedings (Costs) Act 1981 (Cth).

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge.

Associate:

Dated:       8 December 2022