Herford and Berke

[2019] FamCAFC 99

FAMILY COURT OF AUSTRALIA

HERFORD & BERKE [2019] FamCAFC 99

FAMILY LAW – APPEAL – ADJOURNMENT – Where the appellant seeks an order on appeal that the subject declaration made by a Federal Circuit Court of Australia Judge, as to the non-existence of a de facto relationship as at the relevant date to enliven jurisdiction, be set aside – Where, if this appeal is heard by a single judge, that would entail a single judge effectively offering a second opinion on the same or similar facts as were considered by the trial judge – Where it is inappropriate for the appeal to be heard by a single judge – Where the matter is adjourned to be heard by a bench of three judges – Appeal adjourned.

Family Law Act 1975 (Cth), s 94AAA(3)
Federal Proceedings (Costs) Act 1981 (Cth), s 10

APPELLANT: Ms Herford

RESPONDENT:	Mr Berke
FILE NUMBER:	BRC	3295	of	2017

APPEAL NUMBER: NOA 3 of 2019

DATE DELIVERED: 11 June 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 11 June 2019

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 5 December 2018

LOWER COURT MNC: [2018] FCCA 3593

REPRESENTATION

COUNSEL FOR THE 

APPELLANT:

Mr Coleman SC with Mr Flaherty

SOLICITOR FOR THE 

APPELLANT:

Mullick & Associates

COUNSEL FOR THE RESPONDENT: Mr Williams QC with Ms Murphy

SOLICITOR FOR THE RESPONDENT: Hopgood Ganim Lawyers

Orders

1. The hearing of the appeal be adjourned to be heard in Sydney by a Full Court consisting of three Judges on a date to be advised.

2. The electronic appeal book compiled by the Northern Appeals Registry be made available to the parties as soon as possible.

3. The Court grants to each party a costs certificate pursuant to the provisions of s 10 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 each party in respect of the costs incurred by each party in relation to the aborted hearing today.

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 Herford & Berke 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 3 of 2019
File Number: BRC 3295 of 2017

Ms Herford

Appellant

And

Mr Berke

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Today was to be the hearing of the appeal by Ms Herford (“the appellant”) from the declaration and consequent orders made by Judge Jarrett in the Federal Circuit Court of Australia on 5 December 2018. The appeal is opposed by Mr Berke (“the respondent”).

2. The appeal was listed to me as a single judge pursuant to s 94AAA(3) under the Family Law Act 1975 (Cth) (“the Act”). However, at the outset of the hearing today having read and prepared for the appeal, I expressed to the parties my conclusion that it was not an appropriate proceeding for hearing by a single judge of appeal.

3. Without being elaborate, in summary, the appellant seeks an order that the subject declaration as to the non-existence of a de facto relationship between the parties, as at the relevant date, such as to enliven jurisdiction be set aside and be replaced with a declaration enlivening the jurisdiction of the Court to make property orders pursuant to the de facto provisions of the Act.

4. Obviously enough, that would entail a finding by the Full Court of error on the part of the trial judge but also a re-exercise of the relevant discretions and findings to determine the existence or not of a de facto relationship.

5. As it seemed to me, without expressing any conclusions whatsoever about the likely or prospective outcome of the appeal, that would entail me as a single judge effectively offering a second opinion on the same or similar facts as were considered by the trial judge with, on the appellant’s approach, an entirely opposite outcome.

6. For these reasons, I am satisfied that this is a case appropriate to be heard by a bench of three judges of the Full Court rather than a single judge.

7. In these circumstances, s 10 of the Federal Proceedings (Costs) Act 1981 (Cth) is enlivened as submitted by Counsel for each party appearing today. That is, under subsection (2) of s 10 it can be said that this is a case where this hearing has been rendered abortive by reason of “or otherwise becomes unable to continue with, or to give judgment in, the proceedings” part of the subsection. That renders it appropriate that costs certificates under s 10 with respect to this hearing be granted to each party, as each have sought.

8. I have raised with the parties, and they agree, that it is appropriate for the hearing of the appeal to be conducted in Sydney given the availability of judges of the appeal division in that city and the feature that the appellant and her legal team are based in Sydney.

9. I apologise to the parties for the dislocation that this causes in the sense of my not completing the matter. Mr Coleman of Senior Counsel properly raises the point that the Summaries of Arguments were filed by the parties, the last of which was received last month. Unfortunately because of my personal commitments with other appeals, I did not get to this appeal as soon as I would have liked in terms of preparing for it or to identify the difficulty with this being heard by a single judge earlier than today.

10. Cold comfort though it may be, I apologise to the parties that a different course was not followed by the Court to give all concerned earlier notice, but hopefully I can do what I can to minimise the dislocation that has been produced, by the orders I make and requests of my colleagues as to the listing of the appeal.

11. For these reasons I formally order:

    (1)The hearing of the appeal be adjourned to be heard in Sydney by a Full Court consisting of three Judges on a date to be advised.

    (2)The electronic appeal book compiled by the Northern Appeals Registry be made available to the parties as soon as possible.

    (3)The Court grants to each party a costs certificate pursuant to the provisions of s 10 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 each party in respect of the costs incurred by each party in relation to the aborted hearing today.

I certify that the preceding eleven (11) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Kent delivered on 11 June 2019 edited to correct grammatical errors and some infelicity of expression.

Associate: 

Date:  11 June 2019