Jerry and Sloane
[2008] FamCAFC 217
•23 December 2008
FAMILY COURT OF AUSTRALIA
| JERRY & SLOANE | [2008] FamCAFC 217 |
| FAMILY LAW – APPEAL – From decision of Federal Magistrate – costs certificate – appeal finalised by consent – whether appropriate to grant costs certificates – whether appeal succeeded on a question of law – whether Court “heard” the appeal – costs certificates granted |
| Federal Proceedings (Costs) Act 1981 (Cth) ss 6 & 9 |
| B and B (Costs Certificates) (2007) FLC 93-339 Cramer v Davies (1997) 72 ALJR 146 |
| APPELLANT: | MR JERRY |
| RESPONDENT: | MS SLOANE |
| FILE NUMBER: | ADC | 1406 | of | 2008 |
| APPEAL NUMBER: | SA | 58 | of | 2008 |
| DATE DELIVERED: | 23 December 2008 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 23 December 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 25 June 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 765 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr McGinn |
| SOLICITOR FOR THE APPELLANT: | SRG Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Nelson QC |
| SOLICITOR FOR THE RESPONDENT: | Sykes Bidstrup |
Orders by consent
That the appeal be allowed.
That paragraphs 2, 4, 5, 7 and 8 of the orders of Federal Magistrate Simpson made 25 June 2008 be set aside and discharged.
That until further order that the father do spend time with the child born November 2007 as follows:
3.1from 10:00am Christmas Day to 10:00am Boxing Day in 2008;
3.2from 5:00pm New Years Eve 2008 to 3:00pm New Years Day 2009;
3.3at Easter 2009, from 5:00pm Thursday to 5:00pm Easter Saturday;
3.4from 10:00am Saturday 3 January 2009 to 6:00pm Sunday 4 January 2009; and
3.5Otherwise from:
3.5.15:00pm Friday to 6:00pm Sunday commencing 16 January 2009 and each alternate weekend thereafter; and
3.5.2from 5:00pm Thursday to 5:00pm Friday in each intervening week commencing 8 January 2009.
That the handover for the purposes of the child spending time with the father occur at the Hindmarsh Childrens Contact Service and pending acceptance into such service, at the McDonalds Restaurant at D South Australia.
That the parties do all things and execute all documents necessary to cause each of them to become registered at the said contact service.
That the parties do all things and execute all documents necessary and pay all monies equally to cause an updated family assessment report to be obtained.
That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.
That there be no order as to costs between the parties in relation to the appeal.
AND IT IS ORDERED
That the Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 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 father in respect of the costs incurred by the appellant father in relation to the appeal.
That the Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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 mother in respect of the costs incurred by the appellant father in relation to the appeal.
That the Amended Notice of Appeal be removed from the active pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Jerry & Sloane is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SA 55 of 2008
File Number: ADC 1406 of 2008
| MR JERRY |
Appellant
And
| MS SLOANE |
Respondent
EX TEMPORE REASONS
This is an appeal against orders made by Federal Magistrate Simpson on 25 June 2008. The Notice of Appeal before me is the Amended Notice of Appeal filed on 23 September 2008. The matter was listed to be heard today and I made directions on 13 October 2008 for the filing of lists of documents, the obtaining of relevant parts of the transcript, and the filing of written summaries of argument and lists of authorities. All of those orders have been complied with and the matter was ready to proceed today, however, as a result of discussions that have taken place prior to the matter commencing I am pleased to record that the parties have reached agreement about this matter and I now have consent minutes of order before me.
These minutes provide for the appeal to be allowed and for the paragraphs of the order of the Federal Magistrate against which the appeal has been taken to be set aside and discharged and in lieu thereof other parenting orders be put in place until further order. In addition, in the minutes of order there are orders granting to both parties costs certificates pursuant to the provisions of the Federal Proceedings (Costs) Act 1981.
I have no difficulty of course with making the orders sought by consent namely that the appeal be allowed, the orders discharged and the new orders substituted. However, there is an issue as to whether I should be making orders for costs certificates in the circumstances of the appeal actually not proceeding and being resolved by consent.
Ms Nelson QC and Mr McGinn have referred me to a relatively recent decision of the Full Court in B & B (Costs Certificates) reported in (2007) FLC 93-339 where the Full Court (Finn, May and Boland JJ) considered this question. The Full Court found it was appropriate to grant cost certificates in favour of the parties in that case.
The Full Court referred to the decision of Kirby J in Cramer & Davies (1997) 72 ALJR 14, in which his Honour considered this issue in detail and identified three preconditions to the granting of a costs certificate pursuant to s 6 of the Act. Those preconditions are firstly, the existence of a “Federal appeal”, secondly the necessity to establish that the appeal has succeeded on a question of law, and thirdly, the requirement that the court concerned has “heard” the appeal. Their Honours in B & B (supra) held these preconditions also applied to the grant of a certificate pursuant to s 9.
There is no issue here that this is a “Federal appeal” (section 3(1)(ja) of the Federal Proceedings (Costs) Act.
With respect to whether a court has “heard” an appeal, the Full Court in B & B (supra) adopted the broader construction of this expression favoured by Kirby J in Cramer (supra), namely that it requires “no more than having the matter listed before the court so that it may dispose of the appeal in a public and formal way.” In the present case, the matter was called on today for hearing and consent orders were presented to me. I am therefore satisfied that the appeal has been “heard”, adopting this broad approach.
The Full Court in B & B (supra) recognised the difficulty of the Court being satisfied that the appeal has succeeded on a question of law where the appeal is resolved by consent and has not proceeded to a full hearing. The Full Court stated that each case will depend on the material before the Court, before continuing:
“49.In some cases an error of law asserted by the grounds of appeal may be clear on the face of the orders or the reasons for judgment of the trial Judge. In other cases there maybe some indication given by the trial Judge subsequent to the making of his or her orders, that there is an error in those orders or in the supporting reasons for judgment which cannot be remedied by an application of the slip rule and would amount to an error of law. In other cases it may be necessary to consider the orders or supporting reasons for judgment in the light of the written outline of argument of the appellant, and if available, that of the respondent (in which, it is always possible, the error of law may be conceded).
50.It is obviously impossible to state exhaustively the ways in which this Court could satisfy itself sufficiently that an error of law has been made which would provide the basis for the success of the appeal and thus the grant of costs certificates. It can only be said that in reaching such a conclusion, the Court will always need to be conscious of the implications of its conclusion for the public purse.”
The material before the Court in this appeal consists of the appellant’s Amended Notice of Appeal, the judgment of the Federal Magistrate, the transcript of proceedings and the summary of arguments of the appellant and respondent.
As is quite apparent from the documents that I have read and as has been emphasised by Ms Nelson in her submissions the father was complaining about the orders made by the Federal Magistrate and suggesting that there were errors of law. For example he asserts that the Federal Magistrate failed to apply the principles or follow the pathway identified in Goode & Goode (2006) FLC 93-286 by failing to consider making an order for the child to spend equal time or substantial and significant time with the father.
Thus, the three preconditions are satisfied here and it is appropriate for me to grant the parties costs certificates.
I certify that the preceding 11 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 23 December 2008.
Associate
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