DONNELLY & BAXTER - [2010] FamCAFC 138

FAMILY COURT OF AUSTRALIA

DONNELLY & BAXTER

[2010] FamCAFC 138

FAMILY LAW - APPEAL – Where appeal allowed by consent orders – error of law –– lack of expert evidence – absence of transcript on appeal

FAMILY LAW - COSTS CERTIFICATES – Where appeal allowed by consent orders – whether appropriate to grant costs certificates – certificates awarded as the preconditions established by Kirby J in Cramer v Davies (1997) 72 ALJR 146 were satisfied – ensure procedural fairness.

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

Ball & Ball (Costs Certificates) [2007] FamCA 1252
B & B (Costs Certificates) (2007) FLC 93-339
Cramer v Davies (1997) 72 ALJR 146

APPELLANT:

Ms Donnelly

RESPONDENT:

Mr Baxter

FILE NUMBER:

CRC

2009

APPEAL NUMBER:

2009

DATE DELIVERED:

13 July 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

13 July 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

2 December 2009

LOWER COURT MNC:

[2009] FMCAfam 1472

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Slater & Gordon

SOLICITOR FOR THE RESPONDENT:

Ms Green

Susan Green Legal Practice

Orders

IT IS ORDERED BY CONSENT:-

The appeal is allowed.
The orders made on 2 December 2009 be set aside.
The applications for final parenting orders be remitted for re-hearing in the Federal Magistrates Court at Coffs Harbour before a Federal Magistrate other than Jarrett FM.

IT IS NOTED BY CONSENT:-

The respondent to the appeal concedes that the learned Federal Magistrate erred in law as set out in ground 2 of the amended notice of appeal filed 11 June 2010.

IT IS FURTHER ORDERED:-

The Court grants to the appellant a costs certificate pursuant to the provisions of 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 the appellant in relation to the appeal against the parenting orders.
The Court grants to the respondent a costs certificate pursuant to the provisions of 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 against the parenting orders.
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 the appellant and respondent in relation to the re-hearing of the application.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT BRISBANE

Appeal Number: NA 89 of 2009
File Number: CRC 42 of 2009

Ms Donnelly

Appellant

And

Mr Baxter

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

On 2 December 2010 Federal Magistrate Jarrett made parenting orders in relation to the parties’ two children. The mother asked for orders which would allow her to relocate from Coffs Harbour to the Gold Coast. The Federal Magistrate ordered that the parties have equal shared parental responsibility, that the children live with mother in Coffs Harbour and they spend time with the father for extended weekends and holidays.
On 17 December 2009 the mother filed a notice of appeal. On 11 June 2010 an amended notice of appeal was filed.
On 25 June 2010 the Court received correspondence from the parties indicating that they had reached an agreement to allow the appeal by consent. A notation indicated the father conceded the Federal Magistrate erred in law as set out in ground 2 of the amended notice of appeal, which is as follows:
The learned federal magistrate erred in failing to follow the statutory mandate to consider all relevant matters in sub-sections 60CC(3) and 60CC(4) and (4A).
I have read the summary of argument for the appeal of the mother. Certainly, the Federal Magistrate was restricted in his judgment by the absence of expert evidence. His Honour was mindful of this deficiency, which clearly provided some difficulties for him. As he said in the judgment:
25.One of the remarkable features about this case is the absence of any expert evidence that deals with a number of critical aspects of this matter. The first is the wishes of the children. Although [the child P] is of tender years, it may have been that [the child L] had something to say on the subject which might have been informative for the Court. Even though she is eight, it might have been that her wishes attract some weight in this case, particularly given the evidence that the parties both give about her achievements at school. She may have some very strong views about being removed from her current school, given the leadership role that she apparently has on the student council, but I have little before me about that.
26.Nor is there any expert evidence about the nature and extent of the relationship between the children and the parties and, most importantly the effect of each party’s proposal on that relationship or those relationships. In a case where the proposals of the parties are disparate it is of critical importance, it seems to me, to have some evidence about the likely effect of the parties’ proposals on the children’s relationship with those that are close to them. There is no evidence in this case and neither party suggested that the matter be adjourned so that such evidence could be secured. I will do the best I can.
In concluding, which I will ultimately that there has been an error of law, I wish to emphasise that this involves no criticism of the Federal Magistrate, as it is apparent, as he said, he did the best he could.
To some extent, the way the mother’s case was conducted created its own difficulties. As the Federal Magistrate said:
50.There is no evidence from Mr. [Fitzroy]. All there is are those assertions, which must plainly be hearsay, from the mother about his position. The fact that he has been able to secure work in this area since September, 2009 demonstrates two things. The first is that he can secure work in this area and, second, that he is motivated to live in this area if he can secure work here.
This evidence was extremely important in the case because the major reason the mother wished to move to the Gold Coast was because of her relationship with Mr Fitzroy. She has had a child with him and it is entirely understandable that she would want to move. However, the Federal Magistrate raised within the judgment, a number of questions relating to the relationship with Mr Fitzroy and his position. For example:
27.The evidence reveals that the mother has formed a new relationship with Mr [Fitzroy] and, indeed, it seems that this new relationship is the lynchpin upon which her decision to relocate to the Gold Coast pivots. Another remarkable aspect of the case is the failure of the mother to call any evidence from her new partner. What is his relationship like with the children? I don’t know. I have the mother’s self-serving evidence about that, but for the reasons I have already expressed I can be nothing but circumspect about it. I would not expect her to present evidence which would not assist her case. There is simply no reliable evidence, it seems to me, on the point.
In the following paragraph, his Honour asked a number of questions in relation to Mr Fitzroy. Again, had there been a family report, one would have expected that Mr Fitzroy would have been interviewed and that some of these questions might have been answered.
Another fundamental difficulty in this matter, especially in hearing the appeal, is the absence of a transcript of the proceedings before his Honour. This problem has arisen through no fault of the parties and is entirely unexplained. It has been agreed by the solicitors that it would be extremely difficult to hear an appeal in the absence of the transcript. I agree. It may well create procedural unfairness to both parties for an appeal to be heard without the transcript.
In the letter from Susan Green, the solicitor for the father, sent to the Court on 9 July 2010, she said the following:
I refer to our telephone conversation today and write to confirm that whilst the consent orders confirm the agreement to the appeal on the basis of a question of law, I confirm that the actual reason my client had to agree was because of the lack of transcript, and therefore the fact that the appeal court could not review the hearing which occurred before Jarrett FM. Counsel’s advice in those circumstances was that the appeal would have to be granted.
It can only be said that the solicitors for the father have behaved in a professional, entirely appropriate manner in consenting to the appeal being allowed and that there be a re-hearing. I intend to make those orders.

Costs

The parties ask for costs certificates in relation to the appeal and the re-hearing. The Federal Proceedings (Costs) Act 1981 (Cth) requires there be a finding that an error of law has been made.
Sections 9 and 6 of the Federal Proceedings (Costs) Act 1981 (Cth) are in the following terms:
9 (1) Subject to this Act, and in particular without limiting section 6, where:
(a)a Federal appeal referred to in paragraph (d), (j), (ja) or (k) of the definition of Federal appeal in subsection 3(1) succeeds on a question of law; and
(b)in accordance with section 117 of the Family Law Act 1975 , each party to the appeal bears his or her own costs;
the court that heard the appeal may, on the application of the appellant to the appeal, grant to the appellant a costs certificate in respect of the appeal.
(2)The certificate that may be granted under subsection (1) by a court to an appellant to a Federal appeal 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 the appellant in respect of the costs incurred by the appellant in relation to the appeal.
…
6 (1)Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.
(2)Subject to this Act, where a Federal appeal in relation to the amount of damages awarded by a court succeeds, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.
(3)The certificate that may be granted under subsection (1) or (2) by a court to a respondent to a Federal appeal 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 the respondent in respect of:
(a)the costs incurred by the respondent in relation to the appeal; and
(b)any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates.
The question is whether I can make such orders. There are two issues. First, has there been an error of law. Secondly, has there been a hearing of the appeal within the meaning of s 9 and s 6.
The decisions of Ball & Ball (Costs Certificates) [2007] FamCA 1252 and B & B (Costs Certificates) (2007) FLC 93-339 are of assistance. In particular, I refer to the comments of Kirby J in Cramer v Davies (1997) 72 ALJR 146, where his Honour identified three preconditions for the granting of a costs certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth):
·the existence of a “Federal appeal”;
·the necessity to establish that the appeal has succeeded on a question of law;
·the requirement that the court concerned should have heard the appeal.
These three pre-conditions are also necessary for the grant of a costs certificate under s 9. There is, however, an additional precondition required under s 9, being that each party to the appeal bears their own costs in accordance with s 117 of the Family Law Act 1975 (Cth) (“the Act”). In this case neither party is asking that the other pay their costs, and that apart from the order of a certificate, the order would have been in terms of the Act, that is that each party bear their own costs. I understand that the parties were legally aided for the trial and that there is some concern as to whether legal aid will be continued.
In this case the first precondition for the grant of a certificate under s 6 or s 9, that is, is it a “Federal appeal”, exists, as provided by s 3(1)(ja) of the Federal Proceedings (Costs) Act 1981 (Cth).
The second precondition has also been satisfied, as I have accepted the agreed position that an error of law has been made, as provided by ground 2 of the amended notice of appeal, by reason of the absence of critical evidence before the Federal Magistrate. I would add that the absence of the transcript is also of considerable significance for the hearing of the appeal.
The third matter, being the question of whether the court has heard the appeal is, in my view, satisfied by the decision of B & B (Costs Certificates) (2007) FLC 93-339 to which I have already referred.
I am thus satisfied that all necessary preconditions for the granting of a costs certificate under s 9 to the appellant and s 6 to the respondent exist.
I note that as the orders have been set aside there are currently no orders in existence. I am assured that the parties, in the absence of such orders will continue to implement their current long standing arrangement in regards to the care of the children.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 28 July 2010