ECTON & ESAREY - [2015] FamCAFC 84

FAMILY COURT OF AUSTRALIA

ECTON & ESAREY

[2015] FamCAFC 84

FAMILY LAW – APPEAL – NOTICE OF APPEAL – Where the appeal was called on as a result of concerns about the reasons for judgment of the trial judge – Where the respondent conceded the ground of appeal advanced which challenged the adequacy of the reasons of the trial judge – Where the appellant urges the court to re-exercise the discretion – Where it is not appropriate for the discretion to be re-exercised in light of the updating evidence to be presented – Appeal allowed – Matter remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the trial judge.

FAMILY LAW – APPEAL – COSTS CERTIFICATES – Where the appellant and the respondent each seek costs certificates pursuant to the Federal Proceedings Costs Act 1981 (Cth) – Where the law is settled as to whether certificates can be granted where an appeal is allowed without proceeding to a full hearing – Where this matter qualifies for the issuing of certificates – Certificates granted as sought.

Family Law Act 1975 (Cth)

Federal Proceedings Costs Act 1981 (Cth) – ss 6, 8 and 9

B and B (Costs Certificates) (2007) FLC 93-339

Cramer v Davies (1997) 72 ALJR 114

APPELLANT:

Mr Ecton

RESPONDENT:

Ms Esarey

INDEPENDENT CHILDREN’S LAWYER:

Amanda Jane Ryder

FILE NUMBER:

ADC

3763

2014

APPEAL NUMBER:

SOA

2015

DATE DELIVERED:

7 April 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

7 April 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

19 February 2015

LOWER COURT MNC:

[2015] FCCA 327

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr McQuade

SOLICITOR FOR THE APPELLANT:

Hamilton Legal Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Horvat

SOLICITOR FOR THE RESPONDENT:

Andrew Hill & Co

INDEPENDENT CHILDREN’S LAWYER

Legal Services Commission of South Australia

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Hemsley

Orders

The appeal be allowed.
Paragraphs 1 and 2 of the orders made on 19 February 2015 be set aside.
The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Simpson.
The Court grants to the appellant father 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 father in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent mother 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 mother in respect of the costs incurred by her in relation to the appeal.
The Court grants to…

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: ECTON & ESAREY [2015] FamCAFC 84
Case: [2015] FamCAFC 84
Decision Date: 7 April 2015

CaseChat Overview and Summary

The appeal in this matter was brought by the father, who sought to challenge the decision of the Federal Circuit Court of Australia in relation to custody and parenting arrangements for his child. The mother contested the appeal, but conceded that the trial judge's reasons were inadequate. The father argued that the Court should re-exercise its discretion on the matter, but the Court found that it was not appropriate to do so given the updating evidence to be presented. The Court allowed the appeal and remitted the matter back to the Federal Circuit Court of Australia for rehearing by a different judge.

The legal issues before the Court were whether the appeal should be allowed due to the inadequacy of the trial judge's reasons, and whether the Court should re-exercise its discretion in light of the updating evidence to be presented. The Court found that the appeal should be allowed due to the conceded inadequacy of the trial judge's reasons, but that it was not appropriate to re-exercise its discretion given the updating evidence to be presented. The Court also considered whether costs certificates should be granted to both parties in relation to the appeal and the rehearing.

The Court found that it was appropriate to grant costs certificates to both parties in relation to the appeal and the rehearing. The Court found that the matter qualified for the issuing of certificates, as the appeal was allowed without proceeding to a full hearing. The Court granted the father a costs certificate in respect of the costs incurred by him in relation to the appeal, and granted the mother a costs certificate in respect of the costs incurred by her in relation to the appeal. The Court also granted each party a costs certificate in respect of the costs incurred by them in relation to the rehearing.

The Court allowed the appeal and set aside the orders made on 19 February 2015. The Court remitted the matter back to the Federal Circuit Court of Australia for rehearing by a different judge. The Court also granted costs certificates to both parties in relation to the appeal and the rehearing.

Orders

Orders of the court

The appeal be allowed.

Paragraphs 1 and 2 of the orders made on 19 February 2015 be set aside.

The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Simpson.

The Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 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 appellant father in respect of the costs incurred by him in relation to the appeal.

The Court grants to the respondent mother 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 mother in respect of the costs incurred by her in relation to the appeal.

The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 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 each of the parties in respect of the costs incurred by them in relation to the rehearing.

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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