Dahler and Thor - [2010] FamCAFC 164

FAMILY COURT OF AUSTRALIA

DAHLER & THOR

[2010] FamCAFC 164

FAMILY LAW - APPEAL – Where appeal allowed by consent
FAMILY LAW - COSTS CERTIFICATES – Where appeal allowed by consent – Reasons for judgment of the Federal Magistrate never delivered – Federal Magistrate retired – Whether proceedings were “abortive” – Whether appropriate to grant costs certificates pursuant to s 10 of the Federal Proceedings (Costs) Act 1981

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981

Cramer v Davies (1997) 72 ALJR 146
Marsh & Marsh [2009] FMCAfam 1160
Santoro & Santoro [2010] FamCA 126
Soulemezis v Dudley (Holdings) (1987) 10 NSWLR 247

APPELLANT:

Ms Dahler

RESPONDENT:

Mr Thor

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

3538

2009

APPEAL NUMBER:

2009

DATE DELIVERED:

30 August 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

27 August 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

19 Otober 2009

LOWER COURT MNC:

[2009] FMCAfam 1499

REPRESENTATION

COUNSEL FOR THE APPELLANT:	Mr Baston
SOLICITOR FOR THE APPELLANT:	Cooper Grace Ward Lawyers
SOLICITOR FOR THE RESPONDENT:	Respondent appeared in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Linklater-Steele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

In the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment pursuant to s 10 of the Federal Proceedings (Costs) Act 1981 to the applicant, the respondent and the Independent Children’s Lawyer in respect of such part as the Attorney-General considers appropriate of any costs incurred by those parties in relation to the proceedings before the Federal Magistrates Court and the Family Court of Australia.

IT IS NOTED that publication of this judgment under the pseudonym Dahler & Thor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 81 of 2009
File Number: BRC 3538 of 2009

Ms Dahler

Appellant

And

Mr Thor

Respondent

REASONS FOR JUDGMENT

Introduction

In a notice of appeal filed 9 November 2009, the mother appealed from orders made by Federal Magistrate Wilson on 19 October 2009. An amended notice of appeal was filed by leave at the commencement of the hearing.
The orders made by the Federal Magistrate in essence provided that the children, E Dahler, born in March 1994, C Thor, born in February 2003 and G Thor, born in November 2004 live with the father and have time with their mother for a number of hours during the day on Mondays, Thursdays, alternate Saturdays and on special occasions. The time was to be supervised. Other conditions were imposed in relation to medical treatment of the mother.
On the day the Federal Magistrate made the orders and in a document described as “Reasons for Judgment” later published, the Federal Magistrate referred to the necessity for making orders as urged by the Independent Children’s Lawyer. In paragraph 3 his Honour said:
3.I propose to pronounce orders today and to deliver reasons as soon as I am able to do so.
It was common ground in the submissions before me, made by the representatives for the mother and the Independent Children’s Lawyer, that the pronouncement of the orders and the words accompanying it now reproduced did not amount to reasons. Two arguments were submitted justifying their positions. First, that his Honour said that these were not “the reasons” and secondly, that applying the usual test of adequacy of reasons it cannot be seen how his Honour made the decision leading to the orders. For example, there was no reference to the provisions of the Family Law Act 1975 (Cth) (“the Act”) and very little reference to the evidence.
It was for that reason that each of the parties, including the father, agreed that the appeal must be allowed and a new hearing ordered.
What his Honour said was somewhat confusing in that he, in paragraph 5 said as follows:
5.I do not regard such orders necessarily as interim orders, as that term is properly understood, but rather as final orders made on a conditional basis. If one or both of the parents choose to ignore the conditions that are imposed by the Court then the orders can continue to operate according to their terms indefinitely.
It can be seen that the orders made by his Honour were very much in terms of that recommended by the Independent Children’s Lawyer. Some explanation for the extraordinary situation of no proper reasons being given, is that the orders did envisage that further reports were to be obtained by the Independent Children’s Lawyer and the matter was to be listed for further consideration after those reports were obtained.
On 16 December 2009 some of the orders made on 19 October 2009 were suspended and various other orders were made.
Federal Magistrate Wilson resigned in about February 2010 and at no time provided the reasons which he clearly envisaged would be given as he said he would on 19 October 2009.

The appeals costs fund application

On 17 August 2010, the mother filed an application asking for a costs certificate pursuant to s 10(3) and s 10(4) of the Federal Proceedings (Costs) Act 1981 (“the FPCA”). The father and the Independent Children’s Lawyer also ask for such a certificate. This application raises two questions. First, can such an order be made by the Family Court of Australia in the Appellate Jurisdiction where the order originally made was by a Federal Magistrate. Secondly, can it be said that the proceedings were rendered “abortive” by reason of the resignation of the Federal Magistrate. In addition, it is necessary to consider whether an order should be made in this case.
It is appropriate to first set out the provisions of s 10 in full:
SECTION 10 COSTS CERTIFICATES – INCOMPLETE PROCEEDINGS
10(1) [Application of section] This section applies to the High Court, the Federal Court, the Family Court, the Federal Magistrates Court and a court of a Territory.
10(2)           [Incomplete proceedings] Subject to this Act, where any proceedings in a court to which this section applies are rendered abortive by reason that the person, or a person before whom the proceedings are being conducted dies, resigns, or is removed or dismissed from, his or her office, suffers a protracted illness or otherwise becomes unable to continue with, or to give judgment in, the proceedings, the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.
10(3) [Discontinued proceedings]        Subject to this Act, where –
(a)the hearing of any proceedings in a court to which this section applies is discontinued and a new hearing is ordered; and
(b)the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings.
the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.
10(4) [Nature of certificate]       the certificate that may be granted under subsection (2) and (3) by a court to a party to proceedings that have been rendered abortive or the hearing of which has been discontinued, as the case may be, is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to that party in respect of such part as the Attorney-General considers appropriate of any costs incurred by that party in relation to those proceedings.
10(5) [Interpretation]      A reference in this section to proceedings in a court includes a reference to proceedings by way of an appeal to that court.
In considering the preliminary questions it is useful to consider what was said by Justice Kirby in Cramer v Davies (1997) 72 ALJR 146. The application before Kirby J was pursuant to s 6 of the FPCA, in relation to costs incurred before the Full Court of the Family Court, on the successful special leave application to the High Court and in relation to the appellant’s proceedings in the High Court, when orders were made setting aside the orders of the Full Court of the Family Court. A costs certificate was also sought pursuant to s 8 of the FPCA in relation to the new trial.
It is not necessary to explain at any length the background to that case, other than that the wife left the court where the trial was being conducted in an upset state saying that she would not return. The judge, without any further reference to the wife and without giving reasons made orders as sought by the father. The mother appealed unsuccessfully to the Full Court of the Family Court. Special leave to appeal was granted to the mother. Ultimately, the husband, wife and Independent Children’s Lawyer:
[9] … [C]oncurred in the view that the Full Court of the Family Court had erred in upholding the order of Murray J and dismissing the appeal from her order providing finally for the custody of the children. It recited that Ms Cramer, Mr Davies and the separate representative were all of the view that, by consenting to the orders, the parties were acting in the best interests of the children of the marriage in endeavouring to bring the matter to retrial as expeditiously as possible.
To that extent it can be seen that the background to the present application is not dissimilar. In paragraph 14, Kirby J referred by reference to a number of cases and also to the history and purpose of the legislation:
[14] The history and purposes of such legislation are explained in a number of law reform reports. In Mir Bros, in the New South Wales Court of Appeal I stated, in the context of the Suitors’ Fund Act 1951 (NSW):
“The history of the legislation, and indeed its terms, make it plain that the purpose which must be kept in mind in its interpretation and application if the relief of litigants against the costs inevitably incurred when appeal review discloses and [sic] error of law requiring correction. The object is to ensure that litigants do not, as in the past, bear the costs thereby occasioned but that these costs are spread, by way of the fund, to mitigate the hardship to litigants that would otherwise flow.”
See also Australian Postal Commissions v Dao [No 2]. (footnotes omitted)
Then relevant to this application his Honour said:
[15] I keep this general purpose in mind in approaching the meaning of the Act. In the end it is the language of the Act that will govern the success or otherwise of the applications before me. Section 6, which is the key provision, contains three preconditions to the grant of a certificate. The first is the existence of a “federal appeal”. Having regard to the terms of the definition in par (d) of s 3(1) of the Act, it is clear that the proceedings before the Family Court of Australia and before this Court were federal appeals. Secondly, it is necessary to establish that the appeal has succeeded on a question of law. Certainly, the appeal to this Court succeeded. It succeeded by virtue of the orders of this Court based upon the consent of the parties expressed to be with the concurrence of the separate representative.
[16] The facts which I have earlier set out, being the foundation of the grant of special leave to appeal and of the appeal to this Court, suggest that the basis of the “success’ was a recognition by all parties that an error of law had occurred at trial in the Family Court. At least in proceedings such as are described, it is an error of law where a judge does not conform to the requirements to procedural fairness (natural justice). Therefore, the critical question is whether the third precondition to the application of the Act is made out. That requires that the court concerned should have “heard the appeal”. Only where the court has heard the appeal may it, on the application of the respondent, grant to the respondent the costs certificate in respect of the appeal which is sought. Can there be a “hearing of the appeal” for this purpose where the orders disposing of the proceedings are made by consent and without full argument? (footnote omitted)
His Honour then found positively in such circumstances it could be said that the court had heard the appeal. This Court has made a number of orders under the FPCA where there has not been a full hearing of an appeal but we have been satisfied a costs certificate can be made (see Ball & Ball (Costs Certificates) [2007] FamCA 1252 and B & B (Costs Certificates) (2007) FLC 93-339). This is also a case where it can be said that there has been sufficient hearing of the appeal for a certificate to be granted. In referring to his preference to the broader construction of the legislation Kirby J said in paragraph [18] 3:
3.The general objective of the Act is remedial. It has been expressed as one designed to ensure that where errors of law occur in courts of law, which are not the fault of the parties but by definition the fault, if of anybody, of the administration of justice, the burden of costs which is invariably substantial should not fall upon the parties but should fall upon the community generally through laws such as the Act. Given the remedial nature of the Act, a narrow construction of its language would defeat the attainment of its objectives. A broad construction of the word “heard” would advance the attainment of those objectives. The latter should therefore be preferred. (footnote omitted)
In Cramer v Davies orders were made granting a costs certificate pursuant to s 6 in relation to the appeal to the Full Court of the Family Court and the appeal to the High Court of Australia from the Full Court.
Counsel properly referred me to Santoro & Santoro [2010] FamCA 126 a decision of Justice Watts. The judge refused the applications of the parties for costs certificates pursuant to s 10(3) of the FPCA. In that case the applications were brought before the judge arising from a matter heard before a Federal Magistrate. It was argued that in view of the way the Federal Magistrate managed the proceedings they were rendered nugatory and ultimately aborted.
The Federal Magistrate had transferred the matter from that court to the Family Court of Australia and the substantive proceedings were then before Watts J. The background to the matter appears to be that after hearing submissions of all parties the Federal Magistrate decided that the parenting and property settlement proceedings should be heard separately. An application was made for the Federal Magistrate to disqualify himself, which he refused. It seems he then altered his previous views and decided that the hearing should take place to include both the parenting and property matters. After various mentions the Federal Magistrate ordered that the matter be transferred to the Family Court.
The wife claimed that the legal costs for her counsel appearing on these various occasions was in the sum of $22,000 approximately. Justice Watts declined to make the order on the basis that the provisions in s 10 of the FPCA required that the court in which the hearing was initially aborted or discontinued is the court in which the application for a certificate should be heard.
It may be correct that where a trial has simply been adjourned from the Federal Magistrate Court to the Family Court of Australia it would be inappropriate for the judge in the Family Court to hear and determine the application under s 10 of the FPCA however, this case is quite different. The matter comes before the Family Court of Australia exercising its appellate jurisdiction by reason of an appeal from the Federal Magistrate which the parties agreed must succeed.
The proceedings were rendered “abortive” by reason of the resignation of the Federal Magistrate. This Court may, on the application of a party as part of the appeal proceedings, grant to them a costs certificate. The provisions of s 10(5) make this clear.
In this case, justice would demand that the application is dealt with by the Full Court of the Family Court as the triggering event for the application is the appeal being allowed. In any event the application could not be made before the Federal Magistrate as he has resigned.
The question then is whether such certificates ought to be granted. I will deal with each of the parties’ cases individually.
I should add that numerous decisions in relation to this provision have been discussed in a number of cases, recently Marsh & Marsh [2009] FMCAfam 1160 (unreported) in a judgment of Chief Federal Magistrate Pascoe to which I make reference.

Independent Children’s Lawyer submissions

Written submissions were received directed to supporting orders that the appeal be allowed and the matter be remitted for re-hearing with expedition together with the application for certificates. Reference was particularly made to Soulemezis v Dudley (Holdings) (1987) 10 NSWLR 247 being the familiar passage of McHugh JA.
Ultimately it was submitted:
19.It is a travesty of circumstances that the parties now face the prospect of a further hearing after having expended huge financial resources and energies in a 10 day trial which does not produce a proper result.
The affidavit of Lisa O’Neill, the Independent Children’s Lawyer, explains some factual circumstances relating to this matter and the very serious allegations raised by the parties. The trial was heard over a period of seven days from the end of August to September 2009. As a result of orders made by the Federal Magistrate written outlines of submissions were filed. In the affidavit of the solicitor, I am informed that in February 2010 Federal Magistrate Wilson resigned. The document described as “Reasons for Judgment” was published on 1 June 2010.
The solicitor explains that the expense of the Legal Aid Queensland Office including the trial was $28,246.

The mother’s submissions

The mother’s application is pursuant to s 10(3) and s 10(4), it was argued that they were incomplete proceedings. The affidavit of the mother reveals that she provided her former solicitor with a mortgage over her interest in the former matrimonial home to secure payment of the fees. She has been advised that the account will be in the order of $170,000.

The father’s submissions

The father also seeks a certificate. In his affidavit he explains that he has paid $205,501 to his lawyers in respect of legal costs for the trial. These fees include the fees of expert witnesses and senior counsel to represent him.

Conclusion

The proceedings are incomplete because the judgment providing the reasons for the orders were never given. This is not a case of a mere adjournment. It is necessary for the case to begin afresh by reason of the absence of reasons and the judicial officer and necessarily results in legal costs expended having been entirely wasted.
As to discretionary matters, clearly these unfortunate circumstances are not due to the conduct or fault of any party.
There was no alternative other than orders being made that the appeal be allowed and as a result ordering a new hearing. Thus, it can be seen that this application attracts the benefit of s 10 of the FPCA.
A costs certificate should be given for the father, mother and the Independent Children’s Lawyer in these circumstances.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered by Justice May on 30 August 2010.

Associate:

Date: 30 August 2010