HIGGINSON & HIGGINSON

[2014] FamCAFC 120

FAMILY COURT OF AUSTRALIA

HIGGINSON & HIGGINSON [2014] FamCAFC 120

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – where the appeal was allowed by consent in circumstances where the parties agreed that the trial judge’s orders were manifestly unjust – where the circumstances were appropriate for the grant of costs certificates to the parties in relation to the costs of the appeal and the new trial.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Family Law Rules 2004 (Cth)

APPELLANT: Mr Higginson

RESPONDENT: Ms Higginson

FILE NUMBER: SYC 1824 of 2011

APPEAL NUMBER: EA 27 of 2013

DATE DELIVERED: 8 July 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace, Ryan & Johnston JJ

HEARING DATE: 8 July 2014

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 20 February 2013

LOWER COURT MNC: [2013] FamCA 80

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Stenhouse

SOLICITOR FOR THE APPELLANT: Reid Family Lawyers

SOLICITOR  FOR THE RESPONDENT: Ms Smyth of  Dimocks Family Lawyers

Orders

IT IS ORDERED BY CONSENT:

1. The appeal against the orders made by Justice Aldridge on 20 February 2013 be allowed.

2. Orders 29(i), 29(iv)(a) and (b), 31(iv) and 32 of the orders made by Justice Aldridge on 20 February 2013 as amended pursuant to Rule 17.02 of the Family Law Rules be set aside.

3. The matter be remitted for rehearing before a judge other than Justice Aldridge.

4. There be no order as to the costs of the appeal.

IT IS ORDERED:

1. The Court grants to the appellant husband a costs certificate pursuant to the provisions 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.

2. The Court grants to the respondent wife 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.

3. The Court grants to each party a costs certificate pursuant to the provisions of s 8 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 such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new hearing granted by these Orders.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number:  EA 27 of 2013
File Number:  SYC 1824 of 2011

Mr Higginson

Appellant

and

Ms Higginson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Notice of Appeal filed on 15 March 2013 Mr Higginson (“the appellant”) appeals against property orders made by Justice Aldridge on 20 February 2013.

2. The appeal was opposed and to that end appeal books were filed and served.  The appellant filed a summary of argument and the matter was listed for hearing before the Full Court during the sittings commencing on 14 July 2014.  The court was informed that the parties had settled the appeal and accordingly the matter was brought forward and listed today for consideration of the consent orders proposed by the parties.

3. The orders that are proposed by the parties will be made by us.  The parties each seek a costs certificate both for the hearing of the appeal and any rehearing of the matter. 

4. In order to grant a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) this court must be satisfied of the following matters; that the appeal is a Federal appeal that has succeeded on an error of law; it is a matter where each party should pay his or her own costs and the court that heard the appeal is prepared to grant a certificate. Clearly this is a Federal appeal. Although the parties agreed as to the outcome of the appeal, it had been listed, appeal books had been filed and the appellant had filed a summary of argument. In the relevant sense, this court thus heard the appeal.

5. Turning then to whether the appeal has succeeded on a question of law.  We have considered his Honour’s reasons, the notice of grounds of appeal, the summary of argument and we have heard submissions from counsel for the appellant.  The solicitor for the respondent while not wishing to be heard indicated that the agreement of the respondent that the appeal should be allowed had the effect of conceding at least one of the errors of law asserted.  We are satisfied that the appeal has succeeded on a question of law.

6. This is a matter in which each party should bear his or her own costs.

7. The court will make the orders proposed by the parties, namely that the appeal be allowed and orders 29(i), 29(iv)(a) and (b), 31(iv) and 32 be set aside.

8. We will further remit the matter for rehearing before a judge other than Justice Aldridge.

9. We will grant costs certificates to each party for the appeal and the rehearing.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Johnston JJ) delivered ex tempore on 8 July 2014.

Associate: 

Date:  8 July 2014