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

2018

APPEAL NUMBER:

SOA

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

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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hobson & Hobson (No 2)

Details

AGLC: Hobson & Hobson (No 2) [2020] FamCAFC 275
Case: [2020] FamCAFC 275
Decision Date: 10 November 2020

CaseChat Overview and Summary

The appeal, Hobson & Hobson (No 2), involved the parties, Hobson and Hobson, and was before the Family Court of Australia. The dispute related to the re-exercising of the court's discretion regarding financial orders and costs in the context of a family law matter. The court was also required to decide on the issue of costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

The primary legal issues that the court needed to resolve included whether the parties' failure to comply with the orders to file and serve written submissions as to re-exercising the discretion or remitting the matter for rehearing should result in any consequences, and whether costs certificates should be granted to the parties in accordance with the Federal Proceedings (Costs) Act 1981 (Cth). The court found that the matter had resolved through a signed Minute of Consent Orders, which resulted in none of the orders of the primary judge being set aside. Instead, the respondent husband was to pay the appellant wife an additional sum of $1,100,000, and consent orders were made as sought by the parties.

The court exercised its discretion to re-exercise the original orders, taking into account the consent of the parties and the Minute of Consent Orders that had been provided. As a result, the orders made on 25 September 2019 were varied to include the additional payment of $1,100,000 from the respondent husband to the appellant wife. Additionally, the court granted costs certificates to both parties, as sought, pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

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

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.

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.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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