Hobson & Hobson (No 2)

[2020] FamCAFC 275

FAMILY COURT OF AUSTRALIA

HOBSON & HOBSON (NO. 2) [2020] FamCAFC 275

FAMILY LAW – APPEAL – RE-EXERCISE – Where the appeal was allowed and the parties were ordered to file and serve written submissions as to re-exercising the discretion or remitting the matter for rehearing – Where the parties failed to comply with those orders – Upon enquiry by the Appeal Registrar this Court was advised that the matter had resolved – Where a signed Minute of Consent Orders was provided in effect resulting in none of the orders of the primary judge being set aside but the respondent husband paying to the appellant wife an additional sum – Discretion re-exercised – Consent orders made as sought.

FAMILY LAW – APPEAL – COSTS – Where the parties seek costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Where the making of those orders was foreshadowed in the reasons for judgment delivered by this Court – Costs certificates ordered as sought.

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9

Hobson & Hobson [2020] FamCAFC 251

APPELLANT: Ms Hobson

RESPONDENT: Mr Hobson

FILE NUMBER: MLC 6684 of 2018

APPEAL NUMBER: SOA 60 of 2019

DATE DELIVERED: 10 November 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Heard by way of written submissions

JUDGMENT OF: Strickland, Ainslie-Wallace & Tree JJ

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 2 September 2019

LOWER COURT MNC: [2019] FamCA 564

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Brown QC with Mr Matta

SOLICITOR FOR THE APPELLANT: Sage Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Puckey SC (Direct brief)

Orders

UPON NOTING the Order made on 9 October 2020 that the appeal be allowed

AND UPON FURTHER NOTING THE CONSENT OF THE PARTIES IT IS ORDERED THAT

1. The orders made on 25 September 2019 be varied to provide in addition that within thirty (30) days of the date hereof the respondent husband pay to the appellant wife the further sum of $1,100,000.

2. The Court grants to the appellant wife a costs certificate pursuant to 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 the Act to the appellant wife in respect of the costs incurred by her in relation to the appeal.

3. The Court grants to the respondent husband a costs certificate pursuant to 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 the Act to the respondent husband in respect of the costs incurred by him 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 Hobson & Hobson (No. 2) 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 ADELAIDE

Appeal Number: SOA 60 of 2019
File Number: MLC 6684 of 2018

Ms Hobson

Appellant

And

Mr Hobson

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 9 October 2020, this Court delivered its reasons for judgment in relation to this appeal (Hobson & Hobson [2020] FamCAFC 251), and made certain orders.

2. The appeal was allowed, but because of the submissions of the parties at the time of the hearing of the appeal, this Court made the following orders:

   …

   (2)Within twenty-one (21) days of these orders, the parties are to make file and serve written submissions as to whether the proceedings should be remitted for rehearing, or the discretion re-exercised, and in the latter event, the submissions should identify what if any further evidence will be sought to be adduced, and set out the submissions that will be made on the basis of that evidence.

   (3)Within fourteen (14) days of the receipt of the submissions of the other party, each party is to make file and serve any submissions strictly in reply to those submissions.

3. The parties failed to comply with those orders, and nothing was received from them to indicate why that was, or what was happening with the matter. Given that, the Appeal Registrar was obliged to contact the parties, raise their non-compliance with them, and seek information as to what their intentions were in relation to the finalisation of the appeal.

4. As a result of that enquiry, on 5 November 2020, the Appeal Registrar was advised that the matter had resolved, and a signed Minute of Proposed Consent Orders was provided.

5. Because the appeal has been allowed, the effect of that Minute is, that none of the orders made by the primary judge are to be set aside, but there is to be a variation to those orders such that the husband is to pay to the wife an additional sum of $1,100,000, within 30 days of orders being made. Given that the parties have reached that agreement, this Court is content to re-exercise the discretion, and make that further order.

6. The parties also sought costs certificates for the appeal pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

7. This Court is also content to make those orders, given that that was foreshadowed in [48] and [49] of the reasons for judgment delivered on 9 October 2020.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Tree JJ) delivered on 10 November 2020.

Associate: 

Date:  10 November 2020