GATAKIS & GATAKIS (DECEASED) - [2020] FamCAFC 197

FAMILY COURT OF AUSTRALIA

GATAKIS & GATAKIS (DECEASED)

[2020] FamCAFC 197

FAMILY LAW – APPEAL – FAMILY LAW – PROPERTY – Where the parties seek that consent orders be made allowing the appeal, setting aside paragraph 2 of the orders made by the primary judge and a different amount be paid by the appellant to the Estate of the late respondent – Where there was no reference to s 79(8) of the Family Law Act 1975 (Cth) per se in the primary judge’s reasons for judgment – Where it cannot be said that the primary judge had regard to what is required by that section in making her final orders – Where the reasons do not reflect that the primary judge took into account the death of the respondent and addressed s 79(8) of the Family Law Act 1975 (Cth), and as a result the discretion miscarried – Where appellable error is demonstrated – Appeal allowed.

FAMILY LAW – COSTS CERTIFICATES – Where costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) are sought in relation to the appeal – Where the appeal is a Federal appeal, it has succeeded on a question of law and it has been listed in a public and formal way – Where the conditions which must be satisfied before the discretion to grant costs certificates is enlivened have therefore been met – Where the parties have been put to unnecessary expense in pursuing the appeal given the error demonstrated – Costs certificates granted as sought.

Family Law Act 1975 (Cth) s 79(8)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6 and 9

Bhatnagar & Riju [2018] FamCAFC 144
Cramer & Davies (1997) 72 ALJR 146

APPELLANT:

Mr Gatakis

RESPONDENT:

The Estate of the Late Ms Gatakis

FILE NUMBER:

DGC

2162

2019

APPEAL NUMBER:

SOA

2020

DATE DELIVERED:

7 August 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

7 August 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

2 April 2020

LOWER COURT MNC:

[2020] FCCA 616

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Dr R. Smith

SOLICITOR FOR THE APPELLANT:

Sayer Jones Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr Barbayannis

SOLICITOR FOR THE RESPONDENT:

TNV Lawyers

Orders By Consent:

The appeal be allowed
Paragraph 2 of the orders made 2 April 2020 be set aside and the following paragraph be inserted in lieu thereof:

2.On or before 6 October 2020 (“the date”) the respondent husband pay to the applicant wife the sum of $447,651 via her lawyers TNV Lawyers (“the payment”).

The orders made 2 April 2020 otherwise remain in full force and effect.
The Court grants to the appellant 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 appellant husband in respect of the costs incurred by him in relation to this appeal.
The Court grants to the respondent 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 respondent wife in respect of the costs incurred by her in relation to this appeal.

AND THE COURT NOTES THAT:

The parties have contemporaneously signed a minute of orders dismissing the respondent wife’s Application in a Case filed in the Federal Circuit Court of Australia seeking costs of the first instance proceedings to be filed with that Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gatakis & Gatakis (Deceased) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 35 of 2020
File Number: DGC 2162 of 2019

Mr Gatakis

Appellant

And

The Estate of the Late Ms Gatakis

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before the court is a Notice of Appeal filed by Mr Gatakis (“the husband”) on 30 April 2020 against orders made by a Judge of the Federal Circuit Court of Australia on 2 April 2020.
The parties have now reached an agreement in relation to the appeal, and seek that consent orders be made providing, in summary, for the appeal to be allowed, for paragraph 2 of the orders made by the primary judge to be set aside and an order be made in lieu thereof providing for a different amount to be paid by the husband to the Estate of the late Ms Gatakis (“the wife”), that the orders made by the primary judge otherwise remain in full force and effect and, finally, that the parties be granted costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
For completeness, I also mention that the parties seek the inclusion of a note attached to the consent order, which relates to an agreement the parties have reached about dismissing the respondent wife’s Application in a Case filed in the Federal Circuit Court of Australia, seeking costs of the first instance proceedings.
Thus, there are two issues raised by the consent orders. First, should the appeal be allowed by consent and, secondly, should the parties have costs certificates.
In relation to the first issue, I refer to and quote from a decision of the Full Court of the Family Court of Australia in Bhatnagar & Riju [2018] FamCAFC 144, and specifically from the reasons for judgment delivered by Murphy J, which reasons were agreed to by Ainslie-Wallace J and myself as follows:
3.There is some judicial debate as to whether an appellate court must be satisfied of error when an appeal by consent of the parties is sought to be allowed. In Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy [(2008) 246 ALR 15], the Full Court of the Federal Court said in relation to a provision similar to the relevant provision of the Family Law Act 1975 (Cth) (“the Act”) [Cf s 94(2) of the Act and s 28 of the Federal Court Act 1976 (Cth)]:
[43]In making any consent order the court must be satisfied that the order is within power and appropriate. The question is whether, before it can make an order allowing an appeal by consent of the parties, the court must be satisfied that there was a legal or factual error or an error in the exercise of a discretion by the primary judge.
4.The Full Court of the Federal Court concluded:
[51]In our opinion none of the preceding authorities relieves this court of the duty to be satisfied, as a condition of the exercise of its power to allow an appeal by consent, that there was an appellable error.
5.A subsequent Full Court of the Federal Court in Citigroup Pty Ltd v Mason [(2008) 250 ALR 7], said that “there may be … a basis for concluding that [Telstra Corporation] was plainly wrong” [(at [8])], albeit that the later court conceded that, “[i]n the absence of that contention being advanced and detailed submissions” being provided, they were “constrained to follow the earlier Full Court’s judgment” [(at 7])].
6.I am only aware of one decision in this Court in respect of that issue, called Simpson & Brockmann [(2009) FLC 93-403]. In that case, Warnick J at [5] referred to “some debate in intermediate Appellate Courts” to which I have just referred. Although his Honour did not elaborate on that debate, his Honour said at [6]:
I, for myself, if satisfied that an Appellate Court can make orders allowing an appeal by consent and consequential orders, consider the Court might still decline to do so in particular circumstances…
7.These reasons are given by me pursuant to my view that it is in fact necessary, consistent with what the Full Court of the Federal Court in Telstra Corporation said, for us to be satisfied of appealable error and to give reasons accordingly.
Plainly I agree with what was said by the Full Court on that occasion, and I am of the view that here, an appellable error is amply demonstrated, and the appeal should succeed.
In the Notice of Appeal there are four grounds of appeal pleaded, ranging from her Honour’s discretion miscarried in giving insufficient weight to the husband’s initial contributions, to her Honour applying a presumption of equality of contributions during a long relationship, to her Honour’s discretion miscarrying in failing to give adequate weight to the wife’s health and life expectancy and, finally, that her Honour’s discretion miscarried in making a material error of fact in concluding that the wife had a matter of months to live, when the wife had died prior to the delivery of the judgment.
The basis of the appeal being allowed though, is not to be found in any of those grounds of appeal, although the final ground does relate to the error which I am asked to find her Honour made. The background to that is that her Honour heard this matter on 29 and 30 August 2019, and at that time, both parties were alive and were represented before her Honour in relation to what was a dispute as to property settlement. On the last day of that hearing, her Honour made an interim order providing for the husband to pay an amount of $100,000 to the wife by way of an interim property distribution, and judgment was then reserved.
Whilst her Honour’s decision was reserved, the wife passed away, and that occurred on … September 2019.
I am informed that there was email advice to her Honour’s chambers of that event, and as a result of that advice, her Honour made a further order in chambers on 1 October 2019 wherein, pursuant to s 79(8) of the Family Law Act 1975 (Cth) (“the Act”), her Honour appointed the executrix of the Estate of the late wife as the wife’s legal personal representative for the purposes of the proceedings. Her Honour then went on and made orders relating to the interim order that she made on 30 October 2019, to which I have already referred.
However, significantly, her Honour did nothing further in relation to the application of s 79(8) of the Act to the proceedings, which were effectively still before her Honour, albeit all that remained was for judgment to be delivered.
In any event, her Honour delivered her reasons for judgment on 2 April 2020, and made final orders for property settlement. There was, however, no reference in her Honour’s reasons to s 79(8) of the Act per se. In paragraph 1 of the orders though, her Honour did provide that any reference to the wife is to be taken to include reference to the legal personal representative.
The difficulty with that though, and this now appears to be the basis for the agreement that the appeal be allowed, is that s 79(8) of the Act provides for the continuation of property settlement proceedings after a party has passed away, and puts in place several conditions, if you like, of which the court must be satisfied, before it can make the orders.
Unfortunately, given the absence of any reference to s 79(8) in her Honour’s reasons, and specifically no reference to what is required by that subsection in making her final orders, it seems to me that her Honour has erred in completing the proceedings in the way that she has, and thus, there is an obvious appellable error committed by her Honour in that regard.
Understandably then, it has been put to me today, that her Honour’s reasons do not reflect that her Honour took into account the death of the wife, but more specifically, did not address s 79(8), and as a result, her discretion miscarried.
Thus, to repeat, I am satisfied that appellable error is demonstrated and the appeal should succeed.
Turning then to the applications by the parties for costs certificates to be granted.
The applications are made pursuant to ss 9 and 6 respectively of the Federal Proceedings (Costs) Act 1981 (Cth). Common to those sections, and specifically in subsection (1) of each, it can be seen that there are three conditions which must be satisfied before the discretion to grant costs certificates is enlivened. First, the existence of a Federal appeal, secondly, the success of the appeal on a question of law, and thirdly, the fact that the court granting the certificate has heard the appeal.
Plainly, the first two of those requirements are satisfied here. The appeal is properly characterised as a Federal appeal, and the appeal will succeed on a question of law, namely a miscarriage of the exercise of discretion by her Honour.
In relation to the third condition, that has, in the past, proved to be more problematic. However, the law is now settled, and the question of whether there can be a hearing of the appeal for the purpose of those subsections to which I have referred, where the orders disposing of the appeal are made by consent and without full argument, was considered by the High Court of Australia in Cramer & Davies (1997) 72 ALJR 146. There, Kirby J held that a broad construction should be given to that expression and “a hearing” means no more than having the matter listed before the court, so that it may dispose of the appeal in a public and formal way.
Here, the appeal has been listed in a public and formal way, and in my view that requirement is satisfied.
The granting of costs certificates though, is clearly a discretionary exercise of power. It is relevant here that the parties have been put to unnecessary expense in pursuing this appeal, given the error by the primary judge which has been demonstrated. Thus, in the circumstances, I am satisfied that the issue of costs certificates as sought is appropriate.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 7 August 2020

Associate:

Date: 21 August 2020