Garde & Raddison - [2008] FamCAFC 198

FAMILY COURT OF AUSTRALIA

GARDE & RADDISON

[2008] FamCAFC 198

FAMILY LAW - APPEAL from a decision of a Federal Magistrate – where the Federal Magistrate made no orders regarding the parties’ interim applications – where the parties agree that the Federal Magistrate gave inadequate reasons – whether the appeal would have succeeded on a question of law – appeal allowed by consent.

FAMILY LAW - PRACTICE AND PROCEDURE – Transfer of proceedings – whether the Full Court has power to transfer proceedings from the Federal Magistrates Court to the Family Court– issue not determined.

Family Law Act 1975 (Cth)
Federal Magistrates Act 1999 (Cth), s 39, s 40, s 41
Federal Proceedings (Costs) Act 1981 (Cth), s 6, s 9
Family Law Rules 2004
Federal Magistrates Court Rules 2001, r 8.02

B & B (Costs Certificates) (2007) FLC 93-339
Bennett and Bennett (1991) FLC 92-191
Cramer & Davies (1997) 72 ALJR 146
Re: K (1994) FLC 92-461
Sun Alliance Insurance Limited v Z & B Massoud [1989] VR 8
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

APPELLANT:

MR GARDE

RESPONDENT:

MS RADDISON

FILE NUMBER:

MLC

6049

2008

APPEAL NUMBER:

2008

DATE DELIVERED:

12 DECEMBER 2008

PLACE DELIVERED:

MELBOURNE

PLACE HEARD:

MELBOURNE

JUDGMENT OF:

BRYANT CJ, WARNICK AND O’RYAN JJ

HEARING DATE:

9 DECEMBER 2008

LOWER COURT JURISDICTION:

FEDERAL MAGISTRATES COURT

LOWER COURT JUDGMENT DATE:

13 AUGUST 2008

LOWER COURT MNC:

[2008] FMCAfam 993

REPRESENTATION

COUNSEL FOR THE APPELLANT:

MR HOLMES

SOLICITOR FOR THE APPELLANT:

T J MULVANY & CO

COUNSEL FOR THE RESPONDENT:

MR SWEENEY

SOLICITOR FOR THE RESPONDENT:

RICHARD CALLEY

Orders by consent

That the appeal by the appellant father against the orders of Federal Magistrate Turner made on 13 August 2008 be allowed.
That the application of the appellant filed 2 July 2008 be remitted to the Federal Magistrates Court for determination by a Federal Magistrate other than Federal Magistrate Turner on a date and with such priority as the Listings Registrar of that Court determines.
That there be no order as to costs between the parties.
That the Court grants to the appellant a costs certificate pursuant to section 9 of the Federal Proceedings (Costs) Act 1981 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 he has incurred in relation to the appeal.
That the Court grants to the respondent a costs certificate pursuant to section 6 of the Federal Proceedings (Costs) Act 1981 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 he has incurred in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Garde & Raddison is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 78 of 2008
File Number: MLC 6049 of 2008

MR GARDE

Appellant

And

MS RADDISON

Respondent

REASONS FOR JUDGMENT

These reasons relate to an application by an appellant father and a respondent mother for costs certificates under section 9 and section 6 respectively of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) in relation to the costs of an appeal against the interim order of a Federal Magistrate in which the parties have reached agreement that the appeal should be allowed and the interim issues remitted for rehearing before another Federal Magistrate.
The Notice of Appeal was lodged on 10 September 2008 and the grounds relied upon are as follows:
(1)The learned Federal Magistrate’s order was contrary to the evidence and he failed to give due and proper weight to all of the evidence relating to the issues before him.
(2)The learned Federal Magistrate did not adequately address section 60cc of the family law act [sic] in his decision.
(3)The learned Federal Magistrate failed to provide any reasons for judgment.
(4)His Honour erred in not ordering the appointment of an Independent Children’s Lawyer.
(5)His Honour erred in not ordering a report to be prepared pursuant to section 62G sub section 2 of the Family Law Act 1975.
(6)His Honour erred in not ordering any time spent by the father with the child of the marriage.
(7)His Honour failed to follow the guidelines as to the manner to conduct interim hearings concerning child welfare matters as determined by the Full Court in the case of Goode and Goode 2006 FLC 93-286. His Honour failed to consider all of the relevant evidence available and failed to allow the husband to provide through his representing solicitor his details of each and every contested aspect to the wife’s affidavit filed 12 August 2008.
(8)His Honour erred in disallowing the husbands representing solicitor to make submissions in relation to alternative orders sought by the husband by way of an oral submission.
(9)His Honour erred in failing to give directions as to the filing of further affidavit material prior to the trial.
(10)His Honour erred in failing generally to regard the child’s best interests in the order made by him 13 August 2008.
In accordance with the Family Law Rules 2004, the appellant filed a summary of argument on 26 November 2008 and we have the benefit of that summary. In oral submissions, counsel for the wife conceded that the appeal had merit, and particularly conceded that the Federal Magistrate had failed to provide reasons for judgment. In fact, there were some reasons for judgment provided, albeit short reasons, about which further comment will be made. In view of that, counsel submitted that the ground was rather that the learned Federal Magistrate did not provide adequate reasons and with that submission, we agree.
The provision of costs certificates under the Costs Act does not automatically follow the allowing of an appeal and is prescribed by the words of the statute. Sections 9 and 6 are in the following terms:
Section 9: Costs certificates—Federal appeals in family law proceedings
(1) Subject to this Act, and in particular without limiting section 6, where:
(a) a Federal appeal referred to in paragraph (d), (j), (ja) or (k) of the definition of Federal appeal in subsection 3(1) succeeds on a question of law; and
(b) in accordance with section 117 of the Family Law Act 1975 , each party to the appeal bears his or her own costs;
the court that heard the appeal may, on the application of the appellant to the appeal, grant to the appellant a costs certificate in respect of the appeal.
(2) The certificate that may be granted under subsection (1) by a court to an appellant to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney‑General to authorize a payment under this Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

Section 6: Costs certificates for respondents—Federal appeals
(1) Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.
(2) Subject to this Act, where a Federal appeal in relation to the amount of damages awarded by a court succeeds, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.
(3) The certificate that may be granted under subsection (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney‑General to authorize a payment under this Act to the respondent in respect of:
(a) the costs incurred by the respondent in relation to the appeal; and
(b) any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates.

The pre-conditions for the grant of a costs certificate under the Costs Act in sections 6 and 9 have been the subject of several decisions of the Full Court, the most significant of which is B & B (Costs Certificates) (2007) FLC 93-339, where the Full Court comprising Finn, May and Boland JJ adopted the principles set out by Kirby J in Cramer & Davies (1997) 72 ALJR 146.
The three pre-conditions for the grant of a costs certificate under section 6 and section 9 of the Costs Act are:
·The existence of a “federal appeal”;
·The necessity to establish an appeal has succeeded on a question of law;
·The requirement that the court concerned should have heard the appeal.
In relation to the third pre-condition, a broad interpretation of the term “heard the appeal” should be adopted; meaning that a hearing means no more than having the matter listed before a court so that it may dispose of the appeal in a public and formal way (Cramer & Davies (1997) 72 ALJR 146 at [18] and B & B (Costs Certificates) (2007) FLC 93-339 at 81,823.
The appeal was listed before us, and as well as handing up a minute of the orders that the parties sought the court make by consent, oral submissions in support of the orders proposed were made. We are thus satisfied that the third pre-condition, namely that the court should have heard the appeal, has been satisfied. It is also clear that the appeal is a federal appeal and thus the first pre-condition is also met.
The second pre-condition, that the appeal would have succeeded on a question of law, requires a consideration of the nature of the appeal and the material before the court to determine whether, had the matter proceeded and been argued and heard, an error of law would have clearly been demonstrated.
We are satisfied this pre-condition has been met, for reasons that will follow.
The matter before the Federal Magistrate concerned competing parenting applications by a mother and father of a child who was 16 months old at the time of the hearing. The father sought, both on an interim and a final basis, identical parenting orders, including:
·An order for equal shared parental responsibility
·The child live with the mother
·The child spend time with the father on an increasing regime, commencing one day each weekend and progressing through overnight and weekend periods through to longer periods and concluding in an arrangement of equal time in alternate weeks when the child commenced primary school. The father proposed that the delivery and collection of the child be from a child contact centre.
The father also sought the appointment of an independent children’s lawyer and an order for the preparation of a family report to be prepared by an expert to be appointed by the independent children’s lawyer.
The mother opposed most of these orders and, insofar as the child spending time with the father is concerned, sought a dismissal of his applications, both final and interim and an order that he have no ongoing contact with the child at all.
Insofar as the interim application was concerned, the mother sought:
·The appointment of an independent children’s lawyer
·A psychiatric assessment of the father
·A family report to be prepared.
The difference between the parenting orders sought could not be starker. This contrast is understood when some of the facts emerge. The father, at the age of 21 years, pleaded guilty to the charge of murdering his former partner and served a total of 11 years in prison, being released on parole in 1999.
On meeting the mother, he did not disclose his conviction to her. She did not become aware of his conviction until he received a letter from the Victorian Taxi Directorate refusing to grant him a licence and then informed the mother of his background. The mother’s affidavit filed in the proceedings contends that the father informed her that, at the age of 21, he had shot his ex-girlfriend because she had rejected and left him. The mother says that she was greatly distressed of learning of this and was fearful of losing the baby that she was then carrying. She did not then tell her family, although she discussed it with the father’s mother. The mother then deposed to becoming more and more frightened of the father and to his violent, possessive, aggressive and moody behaviour, which took on a new complexion to her given the knowledge she had acquired.
She deposed to him becoming possessive of their unborn child and feeling trapped in the relationship. She deposed to increasing stress at trying to keep the father’s background a secret from her family and the disintegration of their relationship. She deposed to increasingly aggressive behaviour on the part of the father.
The mother remained with the father through the birth and following the birth of the child. She deposed to the father becoming increasingly possessive of the child and growing moodiness by the father and increasing difficulties in their relationship.
The mother deposed to the fact that shortly prior to separation an article appeared in a newspaper about the father. She asserted that the father agreed to be interviewed by the newspaper and described in detail the murder which he had committed. The article contained his and her name. As a result, the mother was forced to tell her family and, in particular, her father. She informed her father of all the circumstances and of her increasing day-to-day fear of the father. By this time she asserted she had started to fear that she and the child and her family were in danger from the father.
The mother’s father was distressed to learn of her situation and concerned for her safety. The mother told him she wished to leave the father and telephoned the father to tell him that she had informed her own father and that she intended to go to her parents’ home, we infer on a short-term basis. When she telephoned the father from her parents’ home she asserted that he demanded she go home with the child and be there when he arrived home from work. When she refused, she asserted he became abusive and aggressive, although she had not at that stage even hinted that she intended to leave him.
She asserted that during the rest of the day he rang her repeatedly at her parents’ home demanding she return home and being abusive to her. To avoid him coming to her parents’ home in this mood she returned home with the child and endeavoured to explain why she had needed to spend time with her family. She says he threatened her and threatened to kill himself if she took the child away. She finally convinced him that she needed to return to her parents’ home and would come back in the morning. Even on the drive to her parents’ home, the father telephoned her on several occasions and when she arrived, she called him and he was abusive and aggressive to her. During the night she asserted he continued to ring her mobile and was enraged and aggressive. She asserted that at one stage he said words to the effect “You know what I am capable of.”
The following day the mother attended at Heidelberg Magistrates Court to obtain an urgent intervention order. She was advised to contact the police which she did, and she says she was then assisted by the police who gave her other information about the background of the father which was so concerning that the police ultimately applied for the intervention order and as a result of the threats he had made to her, the police arrested him and bailed him on conditions that prevented him from having any contact with the mother or her family. Notwithstanding this, he continued to ring and leave abusive messages.
She asserts that subsequently, in disregard of his bail conditions, he broke into the former matrimonial home on the day he was released from custody and removed possessions.
Following the separation, she asserted that she made endeavours through her solicitors to arrange for the father to visit the child. She asserted that she had grave reservations but her concerns that he might kill or injure her and the child if she did not appease him was a factor in her decision to allow him to see the child in a supervised manner.
The father obtained legal representation and the parties attended mediation as a result of which there was an agreement for the father to spend time with the child at her parents’ home and in the presence of a security guard and with other safeguards. Despite some difficulties the mediation sessions occurred and a parenting plan was agreed. In the meantime, visits occurred at the mother’s parents’ home in the presence of the security guard and the mother says that although they initially went relatively calmly ultimately the father’s behaviour deteriorated and he became abusive, threatening and aggressive. These difficulties resulted in the mother suggesting that all future visits should take place at a supervised contact centre and some supervised visits took place. In these circumstances, however, the mother says that the father’s behaviour and threats to her had started to affect her health and she was continually worried about the child being abducted from the contact centre. In addition, she said that she had received advice from an academic specialising in familicide who suggested that a forensic psychiatric assessment of the father ought to be carried out. The mother apparently obtained a referral to a forensic psychiatrist who prepared what she described as a “very chilling and worrying letter to my solicitor confirming my worst fears that James and I and my family were in his opinion in extreme danger.” The mother also asserted that further enquiries by her revealed more information about the father’s violence to his former de facto partners since his release from prison and threats to kill both of them and the children of one of them. The mother says that her fears for the child’s safety escalated considerably after extensive familicide reports appearing in the media. In particular, the Farquarson and Bell cases which received a great deal of coverage.
Her affidavit then went on to detail the effect this was having on her life and her capacity to provide stable parenting to the child. The mother’s affidavit on these issues is detailed and specific.
For the father’s part he did not have an opportunity at the time the matter came before the Federal Magistrate to respond to these concerns. The background, however, is set out by us for the purpose of giving context to the decision reached by the Federal Magistrate. The orders made by the Federal Magistrate on 13 August 2008 provide simply that:
(1)The matter is fixed for final hearing on 23 April 2009 at 10.00am with an estimated hearing time of 2 days.
As he made no orders in relation to the interim application of the father and the mother, it is to be inferred that the relief sought both in relation to parenting orders by the father and other orders sought by both parties for the appointment of an independent children’s lawyer and a family report and psychiatric reports sought by the mother, were dismissed.
The reasons for judgment do not shed any light on why no orders were made as sought by the parties. It can perhaps be understood why no interim parenting orders were made in light of the material before the Federal Magistrate. But given the nature of the matter, and the fact that the Federal Magistrate set the matter down for final hearing, in a case in which an independent children’s lawyer would be warranted (Re: K (1994) FLC 92-461), expert opinion on such issues of family violence and familicide would be anticipated and in a matter where one party sought that the other party spend no time with the child, it is somewhat surprising that no such orders were made. To be fair to the Federal Magistrate, although the mother sought orders for the appointment of an independent children’s lawyer and a family report in her application, in oral submissions her counsel resisted the appointment of an independent children’s lawyer and did not seek a family report. Nevertheless, in a case in which the inquiry is into the best interests of the child and the issues raised are serious and troubling, a failure to give reasons for not making orders as sought by the father in our view constitutes an error of law.

Some reasons were given but they are short in compass and comprise five paragraphs. Because they are short, they can be set out in full:
1.The paramount consideration the Court must have regard to in this matter are the best interests of the child.
2.There is evidence of family violence involving a member of the child’s family. That is a matter the Court must take into account under s.60CC(3)(j) of the Family Law Act1975. At this stage that evidence cannot be contested or is not being contested. The Court does not feel able to make an order as sought by the father until such evidence is tested.
3.The Court therefore does not make the order sought by the father on an interim basis.
4.The matter is adjourned for a final hearing on 23 and 24 April 2009.
5.The Court does not find factors in existence which warrant the appointment of an Independent Children’s Lawyer and will not request Victorian Legal Aid to arrange such representation.
We agree with the appellant, and the concession by the respondent, that the reasons are inadequate. While the Federal Magistrate is correct in saying that finding cannot be made until evidence is tested, there is sufficient concerning evidence on the part of the mother, which was not the subject of contest, for at least some reasons to be given. For example, there were intervention orders obtained by the police and the father had admitted the murder conviction. In a case involving serious allegations of family violence, an assertion by the mother that the father may be a candidate for familicide, and considering the expert evidence that would be required in order to determine this matter at a final hearing, there was in our view an obligation to expose the reasoning leading to the conclusion that no order for appointment of an independent children’s lawyer be made.
The failure to give adequate reasons constitutes an error of law (Sun Alliance Insurance Limited v Z & B Massoud [1989] VR 8; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Bennett and Bennett (1991) FLC 92-191). For that reason we are satisfied that if the appeal had been fully argued it would have succeeded on a question of law and all three pre-conditions required for costs certificates have thus been met.
There is one other matter that was raised before the Federal Magistrate during the course of the proceedings that it becomes necessary for us to address. During the course of the proceedings before the Federal Magistrate, counsel for the mother raised with the Federal Magistrate the prospect of the matter being transferred to the Family Court. Counsel noted that it was a matter that would take six to eight days in hearing and referred the Federal Magistrate to the mother’s affidavit of some 38 pages. The Federal Magistrate was informed that the matter involved a murder conviction, that there would be much psychiatric evidence given as to what the psychiatric state of mind of the father was at the time the murder was committed and a lot of evidence given. The Federal Magistrate indicated that although there had been a policy that cases beyond two to three days would not be heard, that policy “was rescinded some months ago.” To be fair, counsel did not press the point and said that it would not be a problem “as long as we can get 6 to 8 days for the hearing of the trial.” As is already apparent, both the judgment and the orders note that the matter was listed for a two day hearing. No explanation of why that occurred appears in the judgment.
Section 39 of the Federal Magistrates Act 1999 (Cth) provides as follows:
(1) If a proceeding is pending in the Federal Magistrates Court, the Federal Magistrates Court may, by order, transfer the proceeding from the Federal Magistrates Court to the Federal Court or the Family Court.
(2) The Federal Magistrates Court may transfer a proceeding under this section:
(a)      on the application of a party to the proceeding; or
(b)      on its own initiative.
…
(4) In deciding whether to transfer a proceeding to the Family Court under subsection (1), the Federal Magistrates Court must have regard to:
(a) any Rules of Court made for the purposes of subsection 40(4); and
(b) whether proceedings in respect of an associated matter are pending in the Family Court; and
(c) whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding; and
(d)      the interests of the administration of justice.
Section 40 states:
(1) The Rules of Court may make provision in relation to transfers of proceedings to the Federal Court under subsection 39(1).
(2) In particular, the Rules of Court may set out factors that are to be taken into account by the Federal Magistrates Court in deciding whether to transfer a proceeding to the Federal Court under subsection 39(1).
(3) The Rules of Court may make provision in relation to transfers of proceedings to the Family Court under subsection 39(1).
(4) In particular, the Rules of Court may set out factors that are to be taken into account by the Federal Magistrates Court in deciding whether to transfer a proceeding to the Family Court under subsection 39(1).
(5) In making Rules of Court for the purposes of this section, the Federal Magistrates, or a majority of them, must have regard to:
(a) whether particular matters could be more appropriately dealt with in the Federal Court or the Family Court; and
(b) whether the resources of the Federal Magistrates Court are sufficient to deal with particular matters; and
(c)      the interests of the administration of justice; and
(d) anything else that the Federal Magistrates, or a majority of them, considers relevant.
Rule 8.02 of the Federal Magistrates Court Rules 2001 deals with transfers to the Federal Court or the Family Court. The Rules provides that the Court may, at the request of the party or of its own motion, transfer a proceeding to the Federal or Family Court. Rule 8.02(4) says as follows:
In addition to the factors required to be considered by the Court under subsections 39 (3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant:
(a)whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;
(b)whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;
(c)whether the proceeding will be heard earlier in the Federal Magistrates Court;
(d)the availability of particular procedures appropriate for the class of proceeding;
(e) the wishes of the parties.
In this case, it could well be argued that there were issues likely to involve questions of importance, given the nature of the allegations that were being made about the father. Furthermore, sub-paragraph (d), which pertains to the availability of particular procedures appropriate for the class of proceeding, would also appear to have some relevance. The appointment of an independent children’s lawyer, the ordering of a family report, and more particularly the capacity to refer the parties to a family consultant in the Child Responsive Program operated in the Family Court would be procedures that one might expect would be explored by the Federal Magistrate. The fact that the matter was likely to take considerably longer than two days as set out in sub-paragraph f) should have alerted the Federal Magistrate to the complex nature of the matter and the wishes of the parties in making the application was also a factor, although we concede that it was not ultimately pressed.
No reasons were given by the Federal Magistrate, having regard to rule 8.02, as to why he did not transfer the matter to the Family Court. True it is that there is no appeal against an order for transfer or an order for refusal to transfer (section 41(5) of the Federal Magistrates Act 1999 (Cth)). But this does not mean that the exercise of discretion can be undertaken in an arbitrary manner. The discretion must be exercised judicially, having regard to the relevant legislation and rules and the wider context in which two courts with a concurrent jurisdiction operate. The context must obviously be that the more complex and longer matters will be transferred to the superior court, as a general rule. There may have been reasons why the Federal Magistrate thought it inappropriate to transfer this matter but he gave no reasons for refusing the application and it is thus not clear whether he turned his mind to the relevant sections of the Act and Rules that ultimately led him to refuse the application. The ability to appeal the decision does not obviate the necessity to provide at least some reasons for the exercise of this discretion.
In this respect counsel indicated to us that it was their intention to raise the issue of transfer to the Family Court again at the first opportunity if the matter was remitted to the Federal Magistrates Court.
One further matter requires comment.
We were informed that when the original Notice of Appeal was filed, no reasons for judgment had been given and all that occurred on 18 August 2008 was that orders were made. That was the reason, we were informed, that Ground 3 asserted that:
(3)The learned Federal Magistrate failed to provide any reasons for judgment.
We were informed by counsel that, following the lodgement of a Notice of Appeal, the short reasons for judgment that we have referred to were created. If they were created as a result of the Notice of Appeal, then we have some concerns about such a practice. There are cases in which the orders are given and it is indicated that the reasons will be forthcoming. No such indication was given in this case. Normally if a formal judgment is not provided or it is intended that a formal judgment will not be provided, the attention of the parties and the Full Court would be drawn to the transcript. In the way in which the matter was discussed between counsel and the bench, such reasoning might be apparent.
It may be that it was because that did not happen in this case that the short reasons were subsequently prepared. To say more on this issue would be mere speculation but the reasons for judgment contain the words ‘ex tempore’ and we are informed by counsel that such reasons were not delivered on the day. There is a passage in the transcript that is headed ‘judgment’. Counsel assured us that, despite the heading, only orders were pronounced. As we cannot be certain of what occurred, we take the matter no further.
Counsel indicated that when remitted for rehearing, they would be content for the matter to be directly transferred to the Family Court. While the Full Court can re-exercise the discretion of a Federal Magistrate as part of its appellate function, there is nothing in the Act or Family Law Rules 2004, as to the ability of the Full Court, after upholding an appeal from a decision of a Federal Magistrate, and remitting a matter for rehearing, to transfer the matter from the Federal Magistrates Court to the Family Court, by consent or otherwise. No submissions were addressed to us on the power to make such an order. Therefore, we would be reluctant to exercise what inevitably must be an implied power, without hearing argument. Whether such a power can be implied should better await the opportunity for full argument on another occasion.
Accordingly we propose to make the orders as sought by the parties allowing the appeal and the orders will be made by consent in terms of the minute handed to the Court.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 12 December 2008