Harlem and Harlem

[2008] FamCAFC 179

FAMILY COURT OF AUSTRALIA

HARLEM & HARLEM [2008] FamCAFC 179

APPEAL FROM DECISION OF FAMILY COURT – Orders by consent – Issue as to whether costs certificates should be issued where appeal and cross-appeal were allowed by consent – Costs certificates issued for appeal cross-appeal and rehearing 

Federal Proceedings (Costs) Act 1981 (Cth) s6, 8, 9

APPELLANT: MRS HARLEM

RESPONDENT: MR HARLEM

FILE NUMBER: BRF 3862 of 2005

APPEAL NUMBER: NA 61 of 2008

DATE DELIVERED: 23 October 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Coleman, May & Boland JJ

HEARING DATE: 23 October 2008

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 23 May 2008

LOWER COURT MNC: [2008] FamCA375

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Murray

SOLICITOR FOR THE APPELLANT: Hopgood Ganim Lawyers

COUNSEL FOR THE RESPONDENT: Mr Hirst

SOLICITOR FOR THE RESPONDENT: Hirst & Co Family Solicitors

Orders

By Consent

1. That the appellant wife’s appeal be allowed.

2. That the husband’s cross appeal be allowed.

3. That the matter be remitted for rehearing with priority.

4. That there be no order as to the costs of the appeal or cross appeal other than as set out in paragraphs 5 to 7 herein.

Further, it is Ordered

1. That the Court grants to the appellant wife a costs certificate pursuant to the provisions of s9 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 incurred by the appellant wife in relation to the appeal.

2. That the Court grants to the respondent (cross-appellant) husband a costs certificate pursuant to the provisions of s6 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 husband in respect of the costs incurred by the respondent husband in relation to the appeal.

3. That the Court grants to each party a costs certificate pursuant to the provisions of s8 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

IT IS NOTED that publication of this judgment under the pseudonym Harlem & Harlem 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 BRISBANE

Appeal Number: NA61 of 2008
File Number: BRF3862 of 2005

MRS HARLEM

Appellant

And

MR HARLEM

Respondent

EX TEMPORE
REASONS FOR JUDGMENT

MAY J:

1. An appeal was filed by the wife on 8 July 2008 from orders made by Bell J on 16 June 2008.  A cross-appeal was filed by the husband on 25 July 2008 in relation to the same orders. 

2. The orders made by his Honour involved parenting orders, property settlement and maintenance. 

3. The parties have agreed that the appeal and cross-appeal should be allowed and ask that the matter be remitted for rehearing.  The parties also ask that we make the necessary orders to grant to each of them a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise the payment to each of them under the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the costs of the appeal.

4. Having read the judgment, the respective notices of appeal and the submissions, it seems that there was a significant probability that the appeal and the cross-appeal would have succeeded.  In particular, paragraphs 2 and 3 of the submissions by the appellant set out in detail where it is said that there was a failure of the trial judge to make essential findings on the issues in the trial.

5. In the submissions of the cross-appellant husband it is conceded that the trial judge made an error of law as contended in relation to some of the paragraphs referred to in the appellant's submissions.  It is thus clear that, at least to me, we should make the order that the appeals be allowed and that the necessary orders be made in relation to certificates for the appeal. 

6. The parties also ask us to make orders that the Court grant a further costs certificate under the same legislation in relation to a new trial.  The making of such an order is entirely discretionary.  In the circumstances of this case where it is necessary for there to be a new trial, as the Court could not re-exercise the discretion if an appeal is allowed, such a certificate should, in my view, be granted.  I would make the orders as sought by the parties.

COLEMAN J:

1. I respectively agree with Justice May’s reasons for judgment.  I too would make the orders that her Honour proposes.

BOLAND J:

1. I too agree with Justice May’s reasons and the orders that she proposes.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 26 November 2008