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

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 DONNELLY & BAXTER

Details

AGLC: DONNELLY & BAXTER [2010] FamCAFC 138
Case: [2010] FamCAFC 138
Decision Date: 13 July 2010

CaseChat Overview and Summary

The appeal before the court involved Donnelly and Baxter, who were embroiled in a family law dispute. The original matter was heard and decided by a Federal Magistrate in the Federal Magistrates Court. The appeal was allowed by consent, but the court needed to address the legal issues raised, particularly concerning the error of law and the lack of expert evidence in the original proceedings. The absence of a transcript further complicated the appeal, necessitating careful consideration of the procedural fairness in the context of costs certificates.

The court's primary task was to determine whether it was appropriate to grant costs certificates under the circumstances. The appeal was allowed by consent, and the original orders made on 2 December 2009 were set aside. The applications for final parenting orders were remitted for re-hearing in the Federal Magistrates Court at Coffs Harbour before a Federal Magistrate other than Jarrett FM. The court needed to ensure that the procedural fairness was maintained, referencing the preconditions established by Kirby J in Cramer v Davies (1997) 72 ALJR 146. The court found that these preconditions were satisfied, justifying the grant of the costs certificates.

The court considered the implications of the appeal allowed by consent and the absence of a transcript on the appeal. Despite these challenges, the court found that the procedural fairness was upheld, and the granting of costs certificates was appropriate. The orders included setting aside the original orders and remitting the applications for final parenting orders for re-hearing, ensuring that the legal process was fair and just for all parties involved.

The final orders included the allowance of the appeal by consent, the setting aside of the original orders made on 2 December 2009, and the remitting of the applications for final parenting orders for re-hearing in the Federal Magistrates Court at Coffs Harbour before a Federal Magistrate other than Jarrett FM. These orders were made to ensure the legal process was fair, just, and in line with the established procedural fairness standards.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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