EARLES & HIGHSMITH - [2014] FamCAFC 101

FAMILY COURT OF AUSTRALIA

EARLES & HIGHSMITH

[2014] FamCAFC 101

FAMILY LAW – APPEAL – Where parties agree appeal and cross appeal should be allowed and matter remitted for rehearing – Where application for costs certificates – Certificates in relation to the appeal and rehearing recommended.

Federal Proceedings (Costs) Act 1981 (Cth): ss 6, 9

B & B (Costs Certificates) (2007) FLC 93-339
Earles & Highsmith [2013] FamCAFC 84

APPELLANT:

Ms Earles

RESPONDENT:

Mr Highsmith

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC

3528

2008

APPEAL NUMBER:

130

2012

ORDERS MADE:

12 June 2014

DATE DELIVERED:

18 June 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Ryan & Stevenson JJ

HEARING DATE:

12 June 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

8 October 2012

LOWER COURT MNC:

[2012] FamCA 847

REPRESENTATION

FOR THE APPELLANT:

In Person

SOLICITOR FOR THE RESPONDENT:

Mr Richardson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Solomon, Legal Aid NSW

Orders made by consent on 12 june 2014

That the respondent/cross appellant be granted leave to cross appeal in the form of his Notice of Cross Appeal attached to his affidavit filed 2 June 2014.
That the respondent’s Notice of Cross Appeal be deemed to be a cross appeal.
That the appeal against orders made by Justice Collier on 8 October 2012 and the cross appeal in relation to those orders are allowed and subject to order 4 of these orders the orders are set aside.
Pending further hearing and determination of the proceedings between the parties or until further order, orders 1 to 12 inclusive and orders 33 to 43 inclusive made by Justice Collier on 8 October 2012 remain in force.
It is noted that the appellant/cross respondent is at liberty to file an interim and final application for further orders.
The matter be remitted for rehearing before a judge.
That there be no order for costs in relation to the appeal and cross appeal.

IT IS FURTHER ORDERED

That the Court grants to the appellant/cross respondent 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/cross respondent in respect of the costs incurred by her in relation to the appeal.
That the Court grants to the respondent/cross appellant a costs certificate pursuant to the provisions of s 6 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 respondent/cross appellant in respect of the costs incurred by him in relation to the appeal.
That the Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that,…

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.

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Details

AGLC: EARLES & HIGHSMITH [2014] FamCAFC 101
Case: [2014] FamCAFC 101
Decision Date

CaseChat Overview and Summary

In this appeal, the appellant, Ms Earles, sought to challenge parenting orders made by Collier J on 8 October 2012. The respondent, Mr Highsmith, cross-appealed certain of these orders. The matter was heard in the Full Court of the Family Court of Australia at Sydney, with Ainslie-Wallace, Ryan, and Stevenson JJ delivering the judgment on 18 June 2014. The primary issues for determination by the Court were whether the appeal and cross appeal should be allowed and whether costs certificates should be issued in relation to the appeal and any rehearing.

The Court found that both the appeal and cross appeal should be allowed, based on the agreement of the parties that there was an error of law in relation to at least 20 of the orders made by the primary judge. The Court also found that the three necessary conditions for the issuance of a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth) were satisfied: a federal appeal existed, the appeal had succeeded on a question of law, and the court concerned should have heard the appeal. Additionally, it was established that the appellant would bear her own costs.

In light of the findings, the Court granted leave to the respondent to cross appeal and allowed both the appeal and cross appeal, setting aside the orders made by Justice Collier on 8 October 2012. The matter was remitted for rehearing before a judge, and orders were made for costs certificates to be issued for the appeal and any rehearing. All outstanding applications in the appeal were dismissed.

The Court's decision demonstrates a commitment to ensuring that appeals are heard and decided fairly, while also recognising the significant work that has gone into the appeal process. The issuance of costs certificates in relation to the appeal and rehearing ensures that the parties are not unfairly burdened with the costs of litigation.

Orders