Legard and Legard
[2008] FamCAFC 24
•4 February 2008
FAMILY COURT OF AUSTRALIA
| LEGARD & LEGARD | [2008] FamCAFC 24 |
| FAMILY LAW - APPEAL – Costs |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs)_ Act 1981 (Cth) |
| Rice v Asplund (1979) FLC 90-725 B v B (Costs Certificates) (2007) FamCA 1177 |
| APPELLANT: | MR LEGARD |
| RESPONDENT: | MRS LEGARD |
| FILE NUMBER: | MLC | 3414 | of | 2007 |
| APPEAL NUMBER: | SA | 69 | of | 2007 |
| DATE DELIVERED: | 5 February 2008 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Mushin J |
| HEARING DATE: | 5 February 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 20 July 2007 |
| LOWER COURT MNC | [2007] FMCAfam 444 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr D.A. Mort |
| SOLICITOR FOR THE APPELLANT: | Cahill & Rowe |
| COUNSEL FOR THE RESPONDENT: | Mr MacFarlane |
| SOLICITOR FOR THE RESPONDENT: | Harwood Andrews |
Orders
That the applications pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) -
(a) on behalf of the appellant, pursuant to section 9 thereof, and
(b) on behalf of the respondent, pursuant to section 6 thereof -
be dismissed.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Legard & Legard.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 69 of 2008
File Number: MLC 3414 of 2007
| MR LEGARD |
Appellant
And
| MS LEGARD |
Respondent
REASONS FOR JUDGMENT
This is an appeal brought before me pursuant to the provisions of section 94AAA(3) of the Family Law Act 1975. The appeal is against orders made by O'Dwyer FM on 20 July 2007 following a hearing on 30 May 2007.
The substantive proceedings relate to the three children of the parties and particularly to the question of the time which those children are to spend with each of the parties. At the time of the trial those children were two girls, aged seven and five, and a boy aged 14 months.
Final orders were made in the Federal Magistrates Court on 17 July 2006 in respect of all parenting matters. In March 2007 the husband made a fresh application seeking to vary the earlier orders. In particular, he sought that the orders in respect of the two girls whereby he was to spend substantial time with them should be varied to provide for a week‑about arrangement, and that arrangement was to be extended to the youngest child when he turned two years of age. Until the youngest child attained the age of two years, he was to have time with the husband on each alternate weekend, together with two periods each week of seven hours.
The matter came before O'Dwyer FM, as I have said, on 30 May 2007 in a duty list. The wife opposed the orders in respect of the two girls, specifically on the lack of changed circumstances doctrine enunciated initially in Rice v Asplund (1979) FLC 90‑725. The matter was argued before his Honour on the question of whether that doctrine should be taken as a preliminary point and if so, a decision on the merits was sought.
His Honour delivered his reserved judgment and made orders dismissing the husband's application in respect of the girls, finding that the doctrine in Rice v Asplund applied to the extent that the husband had not made out a sufficient case of changed circumstances to warrant the matter going forward. That was, as it appeared to me at the commencement of this appeal, to be the main point which I would need to decide on the appeal. However, the parties have compromised that issue, in circumstances which are not presently relevant.
Also before his Honour on 30 May 2007 was the question relating to the youngest child. The parties handed his Honour minutes in respect of that youngest child, seeking orders by consent, pursuant to which certain variations were to be made to the already existing orders, and the matter was otherwise to proceed. I accept that those minutes provided for the orders to be interim rather than final. However, upon the making of the orders on delivery of judgment his Honour made orders which were not interim but which were expressed to be final.
The issue of the making of final rather than interim orders appeared to be obliquely raised in the grounds of appeal before me, particularly ground 4, which provided:
That the learned Federal Magistrate erred in varying final orders by consent that were interim in nature without proper regard to the paramountcy principle.
I accept that the word "varying" in that ground should be read as being "making". Essentially, that is said to raise the issue regarding the youngest child, particularly asserting that his Honour made an error of law in the appellable sense, by providing for those orders to be final rather than interim, as intended.
The essence of the present application then is that the parties have now entered into final orders in respect of the youngest child, as part of which they have agreed that the appeal with regard to this issue should be allowed. The parties then assert that by virtue of the allowance of the appeal, they should be granted costs certificates pursuant to sections 6 and 9 of the Federal Proceedings (Costs) Act 1981. That is the issue presently before me.
It is unclear to me why the issue of an agreed mistake asserted by the parties to have been made by his Honour as to the making of final rather than interim orders was not rectified pursuant to the slip rule. It is conceded by counsel that it could have been so rectified. Had that been done, the issue would have been removed from the consideration of this Court in the appeal.
I have provided the parties with a copy of an unreported decision of the Full Court of this Court in B v B(Costs Certificates) (2007) FamCA 1177, judgment delivered in Canberra on 28 September 2007. In that decision a Full Court, constituted by three judges, granted certificates pursuant to sections 6 and 9 of the Federal Proceedings (Costs Act) 1981 in circumstances in which the parties had consented to an appeal succeeding without it having been fully argued before the Court. However, in that matter the members of the Court having read the relevant appeal documents, were able to form the view that the order sought by consent by the parties allowing the appeal was an appropriate course to take and did not prevent the granting of certificates.
This matter is quite different. The order could have been remedied by no more than a very short appearance pursuant to the provisions of the slip rule. Had that been the only issue before this Court in the appeal, it would almost certainly not have come this far.
In those circumstances, in my view given that there was another remedy and that that remedy was very easily and inexpensively available to the parties, it is not appropriate that the public purse should meet the costs of the exercise, and accordingly the applications for certificates under the Federal Proceedings (Costs) Act 1981 are refused.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin Full Court
Associate:
Date: 12 March 2008
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