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 | of | 2008 |
| APPEAL NUMBER: | EA | 130 | of | 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, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the intervener in respect of the costs incurred by them in relation to the appeal.
That the Court grants to all 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 all of the parties in respect of the costs incurred by the appellant/cross respondent, the respondent/cross appellant and the Independent Children’s Lawyer in relation to the rehearing of the application.
All outstanding applications in an appeal are otherwise dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Earles & Highsmith has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 130 of 2012
File Number: PAC 3528 of 2008
| Ms Earles |
Appellant
And
| Mr Highsmith |
Respondent
REASONS FOR JUDGMENT
By Notice of Appeal filed on 9 October 2012 (as amended on 15 November 2012), Ms Earles (“the mother”) appealed parenting orders made on 8 October 2012 by Collier J. On the application of the parties and Independent Children’s Lawyer (“ICL”), on 12 June 2014, we made orders by consent whereby the appeal and, as will be discussed, a cross appeal were allowed and recommended that costs certificates issue. In relation to the costs certificates, we indicated we would publish short reasons. These are those reasons.
On 2 June 2014, Mr Highsmith (“the father”) filed an Application in an Appeal seeking an extension of time within which to cross appeal against 20 of the orders the subject of the mother’s appeal. Because the mother appealed against all of the orders made by the primary judge, it was thus common ground between the parties that there was an error of law in relation to 20 at least of the orders made by the primary judge.
Before us, the mother and the ICL agreed that the father should be given an extension of time within which to cross appeal and all agreed that both the appeal and cross appeal should be allowed. It can be discerned from the Amended Notice of Appeal and proposed Cross Appeal that both parties asserted grounds of appeal which, if established, would amount to an error of law.
In relation to the mother’s appeal, as was explained in this court’s decision on the mother’s application that the court provide a typescript of the transcript of proceedings before his Honour, in the absence of a transcript, it can be difficult to assess the merits of an appeal (Earles & Highsmith [2013] FamCAFC 84). However, on the basis of matters raised in the grounds of appeal and from the summaries of argument, we are satisfied we can accept the parties’ agreement that both the appeal and cross appeal should succeed.
Before orders pursuant to either s 6 or s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) may be made, three matters must be established. Namely:
·the existence of a federal appeal;
·that the appeal has succeeded on a question of law; and
·that the court concerned should have heard the appeal.
(B & B (Costs Certificates) (2007) FLC 93-339)
In addition, an appellant must establish that the appellant will bear his or her own costs.
Each matter is established.
The mother’s appeal was listed for hearing on 14 July 2014. There has been very significant work undertaken in relation to the appeal and it is appropriate that we recommend certificates issue as sought.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 18 June 2014.
Associate:
Date: 18 June 2014
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