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…

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 Costa & Costa

Details

AGLC: Costa & Costa [2022] FedCFamC1A 206
Case: [2022] FedCFamC1A 206
Decision Date

CaseChat Overview and Summary

This appeal concerns property settlement orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 14 July 2022. The parties have agreed that the primary judge made a substantial error and that the matter should be remitted. However, the appeal court must be satisfied that there is an appealable error, and cannot simply rely on the parties' agreement. The primary judge referred to and relied on the evidence of two witnesses to support findings sought by the respondent, even though their evidence was not relied upon by the respondent during the hearing. This error was compounded because the evidence was described as unchallenged, even though the appellant would have cross-examined the witnesses if their affidavits had been read.

The appeal court found that the primary judge took into account material that was not before him when dealing with significant issues. The error is one of law and was not induced by the parties. The appeal must be allowed and the matter remitted for rehearing. The appeal court also granted costs certificates for both parties for the appeal and the rehearing under the Federal Proceedings (Costs) Act 1981 (Cth).

The appeal is allowed. The orders made on 14 July 2022 are set aside. 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. 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. 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. 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.

Orders