HANTS & MAGENNIS
[2018] FamCAFC 193
•26 September 2018
FAMILY COURT OF AUSTRALIA
| HANTS & MAGENNIS | [2018] FamCAFC 193 |
| FAMILY LAW – APPEAL – PROPERTY AND SPOUSAL MAINTENANCE – Where the parties consented to agreed orders as to the appeal – Where the parties seek cost certificates – Where the appeal is a Federal Appeal – Where the primary judge’s order was plainly wrong – Error of law – Cost certificates issued. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| B & B(Costs Certificates) (2007) FLC 93-339; [2007] FamCA 1177 Cramer v Davies (1997) 72 ALJR 146; [1998] 1 Leg Rep 20 |
| APPELLANT: | Mr Hants |
| RESPONDENT: | Ms Magennis |
| FILE NUMBER: | PTW | 2707 | of | 2016 |
| APPEAL NUMBER: | WEA | 16 | of | 2018 |
| DATE DELIVERED: | 26 September 2018 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Ainslie-Wallace, Austin & O'Brien JJ |
| HEARING DATE: | 26 September 2018 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 16 March 2018 |
| LOWER COURT MNC: | [2018] FCWAM 55 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Castiglione QC |
| SOLICITOR FOR THE APPELLANT: | Elizabeth Wiese & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Hedges |
| SOLICITOR FOR THE RESPONDENT: | Carr & Co |
Orders
The appeal against the orders of Magistrate Walter made on 16 March 2018 is allowed.
The orders made by Magistrate Walter on 16 March 2018 be set aside.
In lieu thereof the court notes the agreement of the parties:
(a)The parties intend the orders to be made to finalise the financial relationships between the parties as far as practicable within the meaning and intent of s 81 of the Family Law Act 1975 (Cth).
(b)That orders 1 and 2 of the Minute of Consent orders made on 7 May 2018 remain in full force and effect and that the sum of $33,966 has been paid to the respondent.
IT IS ORDERED BY CONSENT
Within 30 days of these Orders, the Respondent, Ms Magennis, do all acts and things and sign all documents necessary, at the Appellant’s expense, to transfer her interest in a unit at L Retirement Village situated at Suburb B (“the Suburb B property”) to the Appellant and formally referred to in the parties’ lease agreement with L Retirement Village dated 22 October 2012.
Contemporaneously with Order 4 the Appellant pay the sum of $275,000 to the sum of $275,000 to the Respondent, such payment be made to her solicitor’s trust account.
Contemporaneously with Orders 4 and 5, the Appellant indemnify the Respondent and keep her indemnified in relation to all rates, taxes, and other apportionable outgoings relating to the Suburb B property.
Upon the making of these orders, all of the Respondent’s right, title, estate and interest (if any) in the following, vest absolutely in the Appellant:
(a) the property situate at V Street, Suburb R;
(b)funds standing to his credit in banks, building societies, credit unions or other financial institutions;
(c)any investments in his name including shares in publicly listed
companies;
(d) any life insurance policies of which he is the legal owner;
(e) any motor vehicle in his possession;
(f) the furniture and household contents in his possession; and
(g) the balance of his superannuation entitlements.
Upon the making of these orders, all of the Appellant's right, title, estate and interest (if any) in the following, vest absolutely in the Respondent:
(a)funds standing to her credit in banks, building societies, credit unions or other financial institutions;
(b)any investments in her name including shares in publicly listed companies;
(c) any life insurance policies of which she is the legal owner;
(d) any motor vehicle in her possession;
(e) any jewellery in her possession;
(f) the furniture and household contents in her possession; and
(g) her superannuation entitlements.
The Respondent indemnify the Appellant and keep him indemnified in relation to all liability for:
(a) credit card debts in her name; and
(b) any other liabilities in her name.
The Appellant indemnify the Respondent and keep her indemnified in relation to all liability for:
(a) credit card debts in his name; and
(b) any other liabilities in his name.
Within 7 days of these Orders being made, the Appellant do all things to destroy all of the Respondent's personal:
(a) emails;
(b) documents;
(c) photos; and
(d) files,
which are currently saved on his computer and confirm, to the Respondent's solicitors, in writing, that the files have been destroyed.
Orders made on 16 March 2018 and 14 June 2018 be discharged.
Orders 3 to 7 inclusive on the Minute of Orders made on 7 May 2018 be discharged and the enforcement Application of the Respondent dated 12 April 2018 be dismissed.
All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from the date hereof.
In relation to material tendered as an exhibit into evidence in these proceedings:
(a)All parties must collect the exhibits tendered by them ("their exhibits"), from the Chambers of Magistrate Walter, at least 28 days, and no later than 42 days from the date hereof;
(b)All parties must contact the Chambers of Magistrate Walter to arrange the collection of their exhibits;
(c)In default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the Court without notice to the parties.
All proceedings otherwise be dismissed with no Orders as to costs including in respect of the Appeal.
IT IS FURTHER ORDERED:
The Court grants to the appellant a costs certificate pursuant to 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 in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent 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 in respect of the costs incurred by her in relation to the appeal.
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 Hants & Magennis 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 PERTH |
Appeal Number: WEA 16 of 2018
File Number: PTW 2707 of 2016
| Mr Hants |
Appellant
and
| Ms Magennis |
Respondent
REASONS FOR JUDGMENT
Ainslie-Wallace J
In this matter the parties have, by agreement, settled the dispute the subject of the appeal and agreed to orders. Today the parties apply for costs certificates resulting from the settlement of the appeal.
The case of B & B(Costs Certificates)(2007) FLC 93-339, which in turn refers to the judgment of Kirby J in Cramer v Davies (1997) 72 ALJR 146 sets out the criteria which must be satisfied before a Costs Certificate pursuant to sections 6 or 9 of the Federal Proceedings (Costs) Act1981 (Cth) (“Costs Act”) will be issued in relation to an appeal; they are:
i)the existence of a Federal Appeal;
ii)that the appeal has succeeded on a question of law; and,
iii)that the court concerned should have heard the appeal.
The appeal is clearly a “Federal Appeal” (see paragraph (j) of the definition of “Federal Appeal” in s 3(1) of the Costs Act) and I am of the view that although the appeal was resolved by agreement, the appeal has been heard in the relevant sense. In that regard I place reliance on Kirby J’s broad interpretation of that expression in Cramer v Davies (1997) 72 ALJR 146 which is to the effect that the requisite hearing can be “no more than having the matter listed before the court so that it may dispose of the appeal in a public and formal way”.
Turning then to the question of whether the appeal has succeeded on a question of law, counsel for the parties, in a joint submission contend that the primary judge erred in the determination as to spouse maintenance by making an order that, in effect, required the appellant to resume employment (notwithstanding that he was retired at the time of hearing) to fund the ordered maintenance.
The relevant paragraph of the judgment is at [139] where the primary judge after observing that at the date of the hearing, the appellant’s weekly income was inadequate to meet his weekly expenditure said:
If [the appellant] was to return to employment, his existing income … will probably be similar, and he will also receive remuneration from his employment. [The appellant] has the capacity to work, and would only need to obtain his [professional] registration again, which did not appear to be a difficulty. … Alternatively, [the appellant] could tutor and there is not the same limitation on him as there is with [the respondent], in relation to the hours he can work. … I consider it is reasonable to expect [the appellant] could work to 70 years of age.
It was submitted that in circumstances where both parties had retired from their respective professions before the hearing, the primary judge’s order was plainly wrong and represented an error of law. I agree.
However, the determination of the Court as to the issue of the certificates is not confined to the submissions of the parties as to what amounts to an error of law for these purposes. Having regard to the grounds of appeal, the first grounds challenge the primary judge’s approach to and determination of the property proceedings. In particular it was asserted that the primary judge failed to determine the respondent’s interest in the C Street property and without having done so could not properly then give consideration to the property of the parties or either of them in concluding what orders were just and equitable. In my view that too amounts to an error of law which justifies the success of the appeal.
For these reasons I am satisfied that there should be costs certificates issued for both the appellant and respondent in relation to the appeal.
Austin J
I agree with the reasons given by the presiding judge.
O’Brien J
I too agree with the reasons given by the presiding judge.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 26 September 2018.
Associate:
Date: 17 October 2018
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