GABRIELS & GABRIELS - [2013] FamCAFC 174

FAMILY COURT OF AUSTRALIA

GABRIELS & GABRIELS

[2013] FamCAFC 174

FAMILY LAW – APPEAL – ORAL APPLICATIONS – COSTS CERTIFICATES – where the husband and the wife made oral applications for costs certificates to issue under the Federal Proceedings (Costs) Act 1981 (Cth) – where the pre-conditions to the issue of certificates pursuant to ss 9 and 6 of the Federal Proceedings (Costs) Act 1981 (Cth) are satisfied – orders made as sought.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6 and 9

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

Cramer v Davies (1997) 72 ALJR 146

APPELLANT:

Mr Gabriels

RESPONDENT:

Ms Gabriels

FILE NUMBER:

PTW

2004

APPEAL NUMBER:

11L

2006

DATE DELIVERED::

1 November 2013

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Strickland,
Ainslie-Wallace and Moncrieff JJ

HEARING DATE:

30 October 2013

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

27 April 2006

LOWER COURT MNC:

[2006] FCWA 44

REPRESENTATION

FOR THE APPELLANT:

Mr Gore

SOLICITORS FOR THE APPELLANT:

Jeffery Paul S Gore

FOR THE RESPONDENT:

Mr Carr

SOLICITORS FOR THE RESPONDENT:

Carr & Co

IT IS ORDERED:

The Court grants to the husband 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 husband in respect to the costs incurred by the husband in relation to the appeal.
The Court grants to the wife 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 wife in respect to the costs incurred by the wife in relation to the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gabriels & Gabriels 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 PERTH

Appeal Number: WA 11L of 2006
File Number: PTW 63 of 2004

Mr Gabriels

Appellant

And

Ms Gabriels

Respondent

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed on 12 September 2006 Mr Gabriels (“the husband”) appealed against some of the orders made by Tolcon J on 27 April 2006. Ms Gabriels (“the wife”) was the first respondent in that appeal. The second respondent in that appeal, the Deputy Commissioner of Taxation, has taken no part in the hearing of the applications now before the court.
In relation to the appeal directions hearings were subsequently held in 2007, and pursuant to orders made at those hearings appeal books were filed on

24 May 2007.
As we understand it, although the appeal then reached a stage where it could be…

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: GABRIELS & GABRIELS [2013] FamCAFC 174
Case: [2013] FamCAFC 174
Decision Date: 1 November 2013

CaseChat Overview and Summary

The case involves Mr Gabriels and Ms Gabriels, who are parties in a family law dispute. The appeal arose from orders made by Tolcon J on 27 April 2006. Mr Gabriels filed an appeal on 12 September 2006 against some of these orders, and the appeal was subsequently resolved by consent orders made by Thackray J on 10 July 2013. Pursuant to these consent orders, both parties sought costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) which are now before the court for determination.

The legal issues before the court were whether the pre-conditions to the issue of costs certificates pursuant to sections 9 and 6 of the Federal Proceedings (Costs) Act 1981 (Cth) were satisfied. These pre-conditions include the existence of a Federal appeal, the appeal succeeding on a question of law, and the court having heard the appeal. Additionally, for a certificate to issue to the appellant, each party must bear their own costs of the appeal. The court considered these pre-conditions in light of previous case law.

The court determined that the pre-conditions were satisfied. The existence of a Federal appeal was evident, and the appeal had succeeded on a question of law. The court also found that the appeal had been heard, as it had been listed for hearing and disposed of in a public and formal manner. The Full Court had previously held that the power to grant certificates under the Costs Act could be exercised by a differently constituted court than the one which allowed the appeal by consent. The court was satisfied that the appeal had been appropriately allowed on a question of law, particularly regarding the denial of procedural fairness by the trial judge.

Accordingly, the court granted the husband a costs certificate under section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) and the wife a costs certificate under section 6 of the same Act. The court made orders as sought by both parties, allowing them to apply for the issuance of costs certificates.

Orders