LAM & RAM

[2006] FamCA 226

[2006] FamCA 226

FAMILY LAW ACT 1975

IN THE FULL COURT        
OF THE FAMILY COURT OF AUSTRALIA  Appeal No EA 101 of 2004
AT SYDNEY  File No NCF 2619 of 2002

BETWEEN:

LAM   Appellant

- and -

RAM  Respondent

REASONS FOR JUDGMENT

CORAM:  KAY, HOLDEN & BOLAND JJ
DATE OF HEARING:                  By way of proposed Minute of Consent Orders
DATE OF JUDGMENT:              3 April 2006

PROPOSED MINUTE OF CONSENT ORDERS RECEIVED FROM:

Mr Tregilgas of Counsel, instructed by Curtis Delaney Gray, DX 7062, Singleton, on behalf of the Appellant Wife.

Mr Johnston of Counsel, instructed by Whitelaw McDonald, DX 7952, Newcastle, on behalf of the Respondent Husband.

APPEAL SUMMARY

MATTER: LAM and RAM                   

APPEAL NUMBER: EA 101 of 2004; NCF 2619 of 2002 

CORAM: Kay, Holden and Boland JJ  

DATE OF HEARING: By way of proposed Minute of Consent Orders  

DATE OF JUDGMENT: 3 April 2006        

CATCHWORDS:

APPEALS – ORDERS – Costs certificates granted to parties – Consent Orders made dealing with proceeds of sale of matrimonial home. 

Legislation

Federal Proceedings (Costs) Act 1981 (Cth) ss 6 and 9.

1. This was an appeal against orders made by Cohen J on 27 August 2004.  We delivered our reasons for judgment on 13 September 2005. 

2. At that time we made orders as follows:

   “ 1.        That within 21 days of the delivery of this judgment the parties              do all things necessary to prepare and file with the Appeals   Registrar an agreed statement of facts relative to the sale of the                   matrimonial home, including details of sale price, expenses   incurred in preparing the home for sale, and sums deducted by              the NAB on settlement.

   2.In the event the parties are unable to reach agreement for the purposes of order 1, then:

   (a) within 30 days of the delivery of this judgment the         respondent husband file with the Appeals Registrar and       serve upon the appellant wife any further submissions     and affidavit material in support thereof upon which the   husband seeks to rely in respect of:

   (i)        any monies expended by him preparing for the   sale of the matrimonial home;

   (ii)       liabilities deducted by the NAB on the sale of   the matrimonial home; and

   (iii)      the question of the re-exercise of the discretion   or remission of the whole or part of the matter to   a single Judge.

   (b)within 14 days of the receipt of such submissions and affidavit material the appellant wife file and serve any response thereto.”

3. Following receipt of written submissions by the parties we delivered a supplementary judgment on 6 December 2005. We then made the following orders:

“ 1.        The appeal be allowed.

2.        That Order 5 of the orders made by the Honourable Justice      Cohen on 27 August 2004 be set aside.

3.        That within 7 days the parties advise the Appeals Registrar at    Sydney in writing whether they will consent to orders         providing:

‘That from the proceeds of sale of the parties’ former matrimonial home [in the Hunter district of] New South Wales presently held on trust by the husband’s solicitors there be paid to the wife the sum of $98,375.

That the balance of the said account be paid to the husband.’

4.         In the event either party refuses within 14 days to consent to an            order that the husband cause the sum of $98,375 to be paid to            the wife, then the husband shall cause the sum of $92,550 to be       immediately paid to the wife and the matter shall be otherwise    remitted for hearing before a Judge other than Cohen J, limited       to the issues identified in paragraph 14 of these reasons for       judgment.”

1. We have now been advised by the Appeals Registrar that the parties have signed consent orders in the following terms:

   “ 1.        The appeal be allowed.

   2.That Order 5 of the orders made by the Honourable Justice Cohen on 27 August 2004 be set aside.

   3.That from the proceeds of sale of the parties’ former matrimonial home [in the Hunter district of] New South Wales held on trust by the husband’s solicitors there be paid to the wife the sum of $98,375.

   That the balance of the said account be paid to the husband.

   4.That the parties be granted Certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth)”

2. As we made orders allowing the appeal, and setting aside the orders of Cohen J of 27 August 2004 on 6 December 2005, there is no necessity for orders 1 and 2 as provided in the consent orders to be made.

3. Further, in our supplementary judgment we indicated that we would make the appropriate orders under the Federal Proceedings (Costs) Act 1981 (Cth). We now propose to make the necessary orders.

4. We propose, as requested by the parties, to make an order by consent in respect of order 3 of the proposed consent orders. 

ORDERS

IT IS ORDERED

1. That the Court grants to the appellant wife a costs certificate in relation to the appeal pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating 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 such part as the Attorney-General considers appropriate of the costs incurred by the appellant in relation to the appeal.

2. That the Court grants to the respondent husband a costs certificate in relation to the appeal pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating 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 such part as the Attorney-General considers appropriate of the costs incurred by the respondent in relation to the appeal.

BY CONSENT IT IS ORDERED

1. That an order be made in terms of order 3 of the proposed Minute of Consent Orders (undated) signed by the parties and their legal representatives, a copy of which is annexed hereto and marked Exhibit  “A”.

I certify that the preceding 7 paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full Court.



Associate