HINKLER & ANGLIN
[2020] FamCAFC 167
•15 July 2020
FAMILY COURT OF AUSTRALIA
| HINKLER & ANGLIN | [2020] FamCAFC 167 |
| FAMILY LAW – APPEAL – PROPERTY – Appeal against final property adjustment orders – Where the primary judge’s orders fail to effect finality of proceedings – Where the primary judge’s orders are not just and equitable – Where the respondent wife conceded the appeal – Error established – Appeal allowed – Orders set aside – Matter remitted – Costs certificates ordered. |
| Family Law Act 1975 (Cth) ss 79(2), 81 Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9 |
| B & B (Costs Certificates) (2007) FLC 93-339; [2007] FamCA 1177 Cramer v Davies (1997) 72 ALJR 146 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 |
| APPELLANT: | Mr Hinkler |
| RESPONDENT: | Ms Anglin |
| FILE NUMBER: | PAC | 1039 | of | 2016 |
| APPEAL NUMBER: | EAA | 91 | of | 2019 |
| DATE DELIVERED: | 15 July 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Ainslie-Wallace, Austin & Tree JJ |
| HEARING DATE: | 6 July 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 August 2019 |
| LOWER COURT MNC: | [2019] FCCA 2309 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Mando |
| SOLICITOR FOR THE APPELLANT: | MIC Lawyers |
| SOLICITOR ADVOCATE FOR THE RESPONDENT: | Mr Vassili |
| SOLICITOR FOR THE RESPONDENT: | Michael Vassili Barristers & Solicitors |
Orders made on 6 July 2020
The appellant be granted leave to rely on an Amended List of Authorities dated 5 July 2020.
The respondent be granted leave to rely on an Amended Summary of Argument and Amended List of Authorities dated 1 July 2020.
The respondent be granted leave to rely on an Application in an Appeal seeking costs on an indemnity basis dated 1 July 2020.
The appeal against the orders of a judge of the Federal Circuit Court made on 22 August 2019 is allowed and those orders are set aside.
The proceedings be remitted to the Federal Circuit Court for rehearing by a judge other than the primary judge.
The Court grants to the appellant 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 in respect of the costs incurred by him in relation to this appeal.
The Court grants to the respondent 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 in respect of the costs incurred by her in relation to this appeal.
The Court grants to the appellant and the respondent 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 the costs incurred in relation to the rehearing of these proceedings.
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 Hinkler & Anglin 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 SYDNEY |
Appeal Number: EAA 91 of 2019
File Number: PAC 1039 of 2016
| Mr Hinkler |
Appellant
And
| Ms Anglin |
Respondent
REASONS FOR JUDGMENT
On 22 August 2019, a judge of the Federal Circuit Court made orders for property settlement as between Mr Hinkler (“the husband”) and Ms Anglin (“the wife”) to the effect that the husband received 15 per cent of the net pool of the parties’ assets, representing a sum of $38,750. By a Notice of Appeal filed on 18 September 2019, the husband appeals those orders.
The primary judge ordered that the $38,750 be paid by the wife to the husband by way of fortnightly payments of $150. The orders made no provision for interest to accrue on the sum ordered, nor did her Honour’s orders secure the payments by the wife to the husband against a property ordered by the primary judge to be retained by the wife. Thus the effect of her Honour’s order is that the husband would receive the full sum ordered approximately ten years from date of the order.
The order, of itself, is flawed, first because it fails to afford the parties finality of proceedings as required by s 81 of the Family Law Act 1975 (Cth) (“the Act”) and secondly because it could not be said, in these circumstances, or perhaps any, that an order which effect payment in instalments over ten years could be considered just and equitable as between the parties (s 79(2) of the Act).
The Notice of Appeal raises a number of challenges to the primary judge’s orders, but does not challenge the clear flaw in the form of the orders.
However, if an appeal court identifies an error, even one not otherwise challenged by the parties, it is not only entitled but obliged to act to correct it. In Warren v Coombes (1979) 142 CLR 531 at 553, Gibbs ACJ, Jacobs and Murphy JJ said:
… However, if the law confers a right of appeal, the appeal should be a reality, not an illusion; if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it.
Thus, we raised this issue with the parties and heard submissions on it.
Counsel for the husband submitted that while no ground of appeal directly challenged the nature and form of the orders made, he said the contention that the orders were erroneous was “implied” in all of the other grounds. We do not read the grounds in that way. The solicitor for the wife submitted, with considerable and helpful candour, that he had had misgivings about the appropriateness of the orders but as the point had not been taken by the husband in his Summary of Argument filed on 18 February 2020, he did not himself raise the ground. He cannot be criticised for adopting that course.
In the result, the solicitor for the wife sensibly conceded that the appeal should be allowed and orders were made allowing the appeal, setting aside the orders of the primary judge and remitting the matter to the Federal Circuit Court for rehearing by a judge other than the primary judge.
Both parties sought costs certificates both for the appeal and the rehearing. The well-known decision of B & B (Costs Certificates) (2007) FLC 93-339 (“B & B”) governs the issue of costs certificates in appeals finalised by consent. In order to grant each party a costs certificate, it is first necessary that this Court has “heard the appeal” (B & B at [30] and [43]). Kirby J, in Cramer v Davies (1997) 72 ALJR 146 at 150, adopted a broad construction of the word “heard” as having the matter listed before the Court so that it may dispose of the appeal in a public and formal way.
Each of the parties complied with the relevant requirements with respect to the filing of Summaries of Arguments and other procedural orders. The matter was listed before this Court and counsel for the husband and the solicitor for the wife appeared. Thus the appeal has been “heard” in the relevant sense.
Next the appeal must have succeeded by reason of an error of law by the primary judge. That precondition too has also been satisfied.
Finally, the matter must be one in which there would otherwise be no order as to costs made as between the parties. Here, there is no basis on which the error which has led to the appeal being allowed would be reflected in a costs order inter partes.
The necessary statutory preconditions under the Federal Proceedings (Costs) Act 1981 (Cth) to grant costs certificates to the husband and the wife in respect of the appeal and any rehearing have been met and it is entirely appropriate that costs certificates be ordered in these circumstances.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Austin & Tree JJ) delivered on 15 July 2020.
Associate:
Date: 15 July 2020
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