M & M - [2005] FamCA 433

[2005] FamCA 433

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA

AT PERTH Appeal No. WA 19 of 2002

File No. PT 4190 of 2001

BETWEEN:

Applicant Husband

-and-

Respondent Wife

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  Finn, Warnick and Le Poer Trench JJ
DATE OF HEARING:            5 July 2004
DATES OF FURTHER
WRITTEN SUBMISSIONS:   6, 20 and 26 August 2004
DATE OF JUDGMENT:        2 June 2005

APPEARANCES: The applicant husband appeared on his own behalf.

Mr Hooper of Counsel (instructed by DCH Legal Group) appeared on behalf of the respondent wife.

APPEAL SUMMARY

MATTER:M and M
APPEAL NUMBER:  WA 19 of 2002

(PT 4190 of 2001)
CORAM:Finn, Warnick and Le Poer Trench JJ
DATE OF HEARING:  14 December 2004
DATE OF JUDGMENT:  2 June 2005
CATCHWORDS: FAMILY LAW – APPEALS – APPLICATION FOR A CERTIFIATE pursuant to SECTION 95(b) of the Family Law Act 1975 (“the Act”) to appeal to the High Court of Australia from orders made by a Full Court of the Family Court of Australia – Discussion of the principles to be applied in determining an application for a certificate pursuant to s 95(b) of the Act – Whether the present case raised an important question of law or of public interest.
FAMILY LAW – APPEALS – COSTS.

Caselaw cited:

Re Z (No. 2) (1996) FLC 92-708

Re Evelyn (1998) FLC 92-817

Laing v Director-General, Department of Community Services (NSW) (1999) FLC 92-850

DJL v Central Authority (2000) 201 CLR 226

Minister for Immigration & Multicultural & Indigenous Affairs and B and B (2003) FLC 93-142

Minister for Immigration & Multicultural & Indigenous Affairs and B (2004) 206 ALR 130

Application for a certificate pursuant to s 95(b) of the Family Law Act 1975 dismissed.

Order for costs made in favour of the respondent.

This is an application by the husband for the grant by this Full Court of a certificate under s 95(b) of the Family Law Act 1975 (“the Act”) to enable the husband to appeal to the High Court of Australia in respect of an order made by a differently constituted Full Court (Nicholson CJ, Holden and Chisholm JJ) on 19 March 2004.
Section 95 is in the following terms:
Notwithstanding anything contained in any other Act, an appeal does not lie to the High Court from a decree of a court exercising jurisdiction under this Act, whether original or appellate, except:
(a) by special leave of the High Court; or
(b) upon a certificate of a Full Court of the Family Court that an important question of law or of public interest is involved.
It will thus be seen that according to the terms of s 95 a certificate can only be granted under paragraph (b) on the basis that “an important question of law or of public interest is involved.”

Relevant background

For the present purposes, the relevant background to this matter can be briefly stated.
On 28 November 2002, Tolcon J made orders in proceedings between the husband and the wife. The effect of those orders was that:
·the two children of the parties’ marriage should reside primarily with the wife;
·the property of the parties should be divided as to 75 per cent to the wife and 25 per cent to the husband; and
·the husband should contribute $4,000 towards the wife’s costs.
The husband appealed against those orders. His appeal was heard by the Full Court (Nicholson CJ, Holden and Chisholm JJ) on 3 and 4 December 2003, with judgment being reserved.
The Full Court delivered its judgment on 19 March 2004 and made orders dismissing the husband’s appeal and ordering that “the husband pay the wife’s costs of and incidental to, the appeal to be taxed in default of agreement.”
On 19 April 2004, the husband filed an application for special leave to appeal to the High Court the judgment of the Full Court of 19 March 2004. The grounds set out in that application were as follows:
2.1The Full Court failed to properly or adequately address or consider the Grounds of Appeal set out in the Amended Notice of Appeal.
2.2The Full Court failed to consider the fact that the trial Judge did not take into account the best interests of the Children by disregarding the Section 68F(2) factors.
2.3The Full Court failed to consider the fact that the trial Judge did not mention the Section 68F(2) factors in the Reasons for his decision.
2.4The Full Court erred in failing to find that the trial Judges (sic) decision was plainly unjust, and for failing to intervene.
2.5The Full Court failed to give any consideration to the Husband’s proposal for shared parenting in a situation where the circumstances admitted the possibility of shared parenting.
2.6The Full Court erred by failing to determine that the Trial Judge had demonstrated Judicial prejudice against the Husband.
2.7The Full Court erred in it’s (sic) determination that the representative of the Husband in the trial, waived any objection to the Trial Judge continuing to hear the trial.
2.8The Full Court has demonstrated Judicial prejudice against the Husband in the Hearing.
2.9The Full Court has demonstrated Judicial prejudice against the Husband in the Reason for Judgement (sic).
2.10The Full Court has demonstrated prejudice against the Husband in the administration of the Appeal process.
2.11The Full Court erred in failing to determine that the Trial Judge should have reserved his judgement (sic) or adjourned the proceedings to allow the splitting of the Husband’s superannuation interest.
2.12The Full Court erred in failing to consider removing the “double dip” in relation to the partial property settlement and paid legal fees from the list of “Assets” as well as from the “retained net assets”.
On the same day, that is 19 April 2004, the husband also filed an application in this Court in which he sought the following orders:
1.The Full Court of the Family Court of Western Australia provide a certificate that the applicant may appeal to the High Court of Australia as there is an important question of law or of public interest involved in his appeal.
2.The costs order of 19^th of March 2004 be stayed pending the appeal.
The husband’s application was supported by an affidavit (also filed 19 April 2004). Annexed to that affidavit was a “Draft Notice of Appeal”. That draft notice of appeal contained identical grounds to those contained in the husband’s application to the High Court for special leave.
The husband’s application filed 19 April 2004 (seeking the s 95(b) certificate and the stay of the costs order made by the Full Court on 19 March 2004) came before Holden J on 11 May 2004.
Pursuant to the provisions of s 94(2D)(d) of the Act, Holden J heard and dismissed the application for a stay of the costs order made by the Full Court on 19 March 2004. Section 94(2F) operates to provide that no appeal lies against the order made by Holden J under s 94(2D)(d).
Holden J also made directions for the husband’s application for the s 95(b) certificate to be heard in the next sittings of the Full Court in Perth which was to commence on 5 July 2004, and he reserved to that Full Court the costs of the husband’s unsuccessful application for a stay of the costs order made by the Full Court.
In anticipation of the hearing before the Full Court, the husband filed on 30 June 2004 a 17 page document entitled “Application for Certificate: Applicant’s Summary of Arguments”. Then, on 1 July 2004, the husband filed three volumes which, although entitled “Certificate Book Index”, have some similarity to appeal books; more particularly they contain material referred to in the husband’s summary of argument document.
On 2 July 2004 the wife through her solicitors filed a Summary of Argument.
When the matter came before us for hearing on 5 July 2004, the husband sought an adjournment on the ground that he had not had sufficient time to consider the respondent wife’s summary of argument which, as we have said, was only filed on 2 July 2004.
Because this Court sits infrequently in Perth, we considered that rather than adjourn the hearing of the husband’s application for the s 95(b) certificate to a subsequent sitting of the Full Court, the better course would be to deal with the matter by written submissions. We therefore made the following directions and notations on 5 July 2004:
1.That the applicant husband be at liberty to file and serve on the respondent wife written submissions in relation to his application for a certificate under s 95(b) of the Family Law Act 1975 and in response to the respondent wife’s summary of argument, by 5 August 2004.
2.That the respondent wife be at liberty to file and serve on the applicant husband written submissions in response to any such written submissions by the applicant husband by 19 August 2004.
3.That the applicant husband be at liberty to file and serve on the respondent wife further written submissions in response any such written submissions by the respondent wife by 26 August 2004.
IT IS NOTED that the above-mentioned submissions should in addition to above-mentioned matters also cover:
i.the costs of and incidental to the husband’s application for a certificate under s 95(b) of the Family Law Act 1975 and the hearing this day, and also the reserved costs of the hearing before the Honourable Justice Holden on 11 May 2004; and
ii.the issue of whether the applicant husband wishes to have removed from the appeal books filed by him the letter appearing at page 209 of the books.
On 6 August 2004, the husband filed an 18 page document entitled “Amended Applicant’s Summary of Arguments” together with two additional volumes entitled “Certificate Book Index”.
This material was filed by the husband a day later than the date provided in our directions made on 5 July 2004. However, we are prepared to overlook that fact.
On 20 August 2004, the wife through her solicitors filed submissions in accordance with our directions, and then on 26 August 2004 the husband filed his further submissions also in accordance with our directions.
Before considering the parties’ submissions, it will be useful to refer to the decisions of the High Court and the Full Court of this Court concerning the operation of s 95(b).

Authorities concerning s 95(b)

In their majority judgment in Re Z (No 2) (1996) FLC 92-708, Nicholson CJ and Frederico J recorded that up until that time certificates under s 95(b) had only been granted on three occasions. Their Honours described the three previous cases in which the Full Court had granted certificates in the following way (at 83,489-490):
Certificates have been granted only three times previously. The first such case was Stowe v Stowe (No 2) (1981) FLC 91-074 which concerned the extent of the powers of the Family Court of Australia to grant an injunction under s 114 of the Family Law Act 1975 (Cth) affecting property, the legal title to which, is vested in a third party. It would seem that the matter settled and did not proceed to the High Court.
The next occasion was Fisher v Fisher (No 2) (1986) FLC 91-767 where a case was stated to the Full Court questioning the validity of the Family Law Act 1975 (Cth) and the jurisdiction it confers upon the Family Court of Australia in circumstances where the legal personal representative of the deceased wife sought to be substituted as the party to the property proceedings she had initiated. A certificate was granted but the appeal was held by all members of the High Court to be incompetent and that no appeal lay to the High Court from answers to questions of law because such answers were not themselves decisive of the rights of the parties and could not be described as “judgments, decrees, [or] orders” for the purposes of s 73 of the Constitution. In Mellifont's case (supra), a majority of the Court [Mason CJ, Deane, Dawson, Gaudron and McHugh at 304 Toohey J at 325 Brennan J dissenting] held that Fisher's case (supra) was incorrect in this regard.
The third certificate under s 95(b) was granted following a case stated to the Full Court concerning the ambit of parental power to authorise special medical procedures such as sterilisation upon children. The High Court judgment is reported as Secretary, Department of Health and Community Services v JWB and SMB (1992) FLC 92-293; 175 CLR 218 “Marion’s case”.
As the Full Court observed in a recent decision refusing to grant a s 95(b) certificate:—
“by far the most common way in which matters proceed to the High Court is through an Application for Special Leave. That is for the very good reason that it gives the High Court the opportunity to decide for itself whether it should entertain the matter.”
(P and P and The Leqal Aid Commission of New South Wales and The Human Riqhts and Equal Opportunity Commission, unreported, judgment delivered 28 August 1995).
Then, in reaching their decision that they would not grant a certificate in Re Z (No 2), Nicholson CJ and Frederico J said (at 83,493, emphasis added):
The critical issue as we see it is whether this Court should bind the High Court to further determine the case stated which we have answered or whether we should decline to do so and leave the decision to hear or refuse to hear the application to the High Court itself. For us to grant a certificate is a serious step which effectively usurps High Court’s discretion and detracts from its capacity to determine for itself, the matters which it considers significant for the function and development of the law as seen from the position of the highest court in the land: see in this regard the judgment of Dawson J in Morris v The Queen (1987) 163 CLR 454.
In Re Evelyn (1998) FLC 92-817 (which concerned the important issue of surrogacy arrangements) the Full Court (Baker, Finn and Chisholm JJ) also refused the grant of a certificate under s 95(b) on the basis that in the circumstances of that case the Full Court should adhere to the principle that it is for the High Court to decide whether or not it would entertain a particular matter (at paragraph 49).
Subsequently, however, in Laing v Director-General, Department of Community Services (NSW) (1999) FLC 92-850 Nicholson CJ (with whom Moore and May JJ agreed) referred to his joint decision with Frederico J in Re Z (No 2) and also to the decision of the Full Court in Re Evelyn (supra), but then went on to say (at 86,002-003):
25. I am now inclined to the opinion that the view in Re Z (No 2) was too restrictive. As Dr Griffith QC pointed out in the present case, it does not seem to be consistent with the views expressed in the majority judgment of McHugh, Gummow and Callinan JJ in the subsequent High Court decision of CDJ v VAJ(1998) FLC 92-828 at para 110 and by Kirby J in para 186 subpara 8.
26. Counsel were unable to direct us to any material that provided an explanation for the inclusion of s 95(b) in the Act. One is therefore left to speculate to some degree as to why it was included.
27. I consider that it must be that because of the specialist nature of this Court and the limited number of family law cases that were likely to come before the High Court, the legislature considered that the Full Court of this Court would in some circumstances, have a high degree of awareness of what were important questions of law or public interest in the family law area.
…
32. However this may be I am satisfied that the view previously taken by Justice Frederico and myself was too restrictive in that it purported to read limitations into the section that were not there. The section must be given its ordinary meaning and that is what I propose to do.
In Laing the other two members of the Full Court (which was on that occasion a bench of five members) being Finn and Kay JJ would have refused the grant of the certificate. Their Honours’ views were subsequently recorded by the High Court majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) in their decision in Laing (reported as DJL v Central Authority (2000) 201 CLR 226; (2000) FLC 93-015):
16. … Finn J would have dismissed the application. Her Honour detailed the history of the litigation and the previous decision of the Full Court in Re Z [No 2] ((1996) 135 FLR 42) in which a certificate had been refused. Her Honour then said (Laing (1999) 152 FLR 1 at 8; 24 Fam LR 623 at 630-631; [1999] FLC 92-850 at 86,005):
“Against this factual background, and given the recognition which this court has previously accorded to the right of the High Court to determine which matters it will entertain, I do not consider that it would be appropriate for this court now effectively to require the High Court to ‘revisit’ this case, notwithstanding that it would come in a somewhat different guise.”
Kay J would have dismissed the application on the ground that no important question of law and no important question of public interest was involved in determining what his Honour saw as the question, namely whether the Full Court had properly exercised its discretion in refusing to re-open its earlier decision (Laing (1999) 152 FLR 1 at 11-12; 24 Fam LR 623 at 634; [1999] FLC 92-850 at 86,008).
The High Court majority in Laing (DJL) were critical of the form of the certificate which had been issued in that case pursuant to the decision of the Full Court majority, saying:
15. The issue which is involved in the grant of a s 95(b) certificate must be “an important question of law or of public interest”. The certificate in the present case does no more than repeat these criteria. That is unsatisfactory. Consistently with the approach to be taken to such a provision, as explained in Willocks v Anderson in the passage set out earlier in these reasons, the certificate should specify the terms of that important question. (Compare the terms of the certificate under s 74 of the Constitution granted by this Court in Colonial Sugar Refining Co Ltd v Attorney-General (Cth) (1912) 15 CRL 182 at 234-235.) This set out the terms of a particular inter se question which was to be determined by the Privy Council). It should also state whether that question is one of law or of public interest or both. The apparent object of s 95(b) will then be achieved. This is to obviate the necessity for a grant of special leave by the High Court limited to a ground perceived by the High Court, on the special leave application, to be an important question of law or of public interest.
Subsequently, in Minister for Immigration & Multicultural & Indigenous Affairs and B and B (2003) FLC 93-142, the Full Court (Nicholson CJ, Ellis and O’Ryan JJ) granted a certificate under s 95(b) in the following terms:
The judgment of the Full Court of the Family Court given on 19 June 2003 in the matter of B and B (Infants) and B (Intervener) and the Minister for Immigration and Multicultural and Indigenous Affairs involves the following issues which are important questions of law and of public interest:
1. The scope of the ‘welfare’ jurisdiction of the Family Court under s. 67ZC and/or s. 68B of the Family Law Act 1975, in particular whether that jurisdiction extends to:
(i) determining the validity of the detention of a non-citizen child (who is the child of a marriage) under s. 196 of the Migration Act 1958, and
(ii) making orders directing officers in the performance of their functions under the Migration Act in relation to such a child.
2. Whether the provisions of Part VII of the Family Law Act operate according to their tenor, on the basis that they are supported by s. 51(xxix) of the Constitution (as implementing the United Nations Convention on the Rights of the Child), or only have the more limited operations provided for in Subdivision F of Division 12 of Part VII.
3. Whether the detention of a child who is an ‘unlawful non-citizen’ within the meaning of the Migration Act is beyond the authority conferred by that Act when that detention extends over a lengthy period or its duration is indefinite.
4. If so, whether the detention of a child is ‘indefinite’ if the child lacks capacity to make a request under s. 198(1) of that Act.

In its reasons for granting the certificate in that case, the Full Court said:
19. In this matter we are satisfied that there are important questions of law and of public interest involved and that, in all the circumstances, it is appropriate to grant a certificate pursuant to s. 95(b) of the Act. We accept the submissions of the Solicitor General in this regard. Neither counsel for the children or counsel for the Intervener submitted that important questions of law and of public interest were not involved. However, whilst counsel for the children submitted that it was appropriate for this court to grant a certificate, counsel for the Intervener submitted that we should not. We accept that were we to grant such a certificate, the appeal may be considered by the High Court earlier than if we refuse to do so. As observed by Fogarty J in Re Z (supra) at 83,494:—
“The further advantage in granting a certificate in this case, where it is otherwise appropriate to do so, is that it may enable this matter to be determined by the High Court some months earlier than will otherwise be the case if the special leave application, which I understand is listed for hearing late this year, is to provide the only avenue of access.”
It is fair to say that this reasoning on the part of the Full Court was the subject of criticism by certain members of the High Court (Gummow, Hayne and Heydon JJ) in their joint judgment in Minister for Immigration & Multicultural & Indigenous Affairs and B (2004) 206 ALR 130; (2004) FLC 93-174; (2004) 31 FamLR 339:
64. The minister appeals to this court not upon a grant of special leave made by this court pursuant to s 95(a) of the Family Law Act but upon a certificate granted by the Full Court of the Family Court under s 95(b) upon application by the minister. The anomalous nature of s 95(b) and the difficulties to which certificates thereunder may give rise were considered in detail in the joint judgment of five members of this court in DJL v Central Authority ((2000) 201 CLR 226 at 236–40 [12]–[23]; 170 ALR 659 at 663-7; 26 FamLR 1 at 5–9). That anomaly is the more apparent in the present case, given the remedies available in this court under s 75(v) of the Constitution for jurisdictional error in the Family Court and the avenues for removal under s 40 of the Judiciary Act 1903 (Cth) upon application by the Attorney-General of the Commonwealth.
65. The Full Court gave reasons upon the application by the minister for the certificate. Their Honours said:
We accept that were we to grant such a certificate, the appeal may be considered by the High Court earlier than if we refuse to do so.
However, the court also noted:
[The submission for the minister was that] it is almost inconceivable that the High Court would not grant Special Leave.
66. The order of business in this court is not for the presumption of any intermediate appellate court. There was no good ground for the supposition that s 95(b) confers a power to be exercised by reference to a consideration, false in the event, that, by the grant of a certificate in the place of an application under s 75(v) of the Constitution or an application for removal or a grant of special leave, particular litigation displaces or obtains a priority over consideration by this court of the many matters of urgent and general public importance that at any time stand in its list.

Principles to be drawn from these authorities

Having regard to those last-quoted comments from the judgment of Gummow, Hayne and Heydon JJ, it has to be concluded that the more conservative or restrictive view expressed in Re Evelyn (No 2) and by the majority in Re Z (No 2), being to the effect that it is for the High Court to decide what matters it will determine, must be the better view. This is particularly so in a case such as the present where the applicant husband has also filed an application in the High Court seeking leave to appeal to that Court relying on the same grounds as are contained in the draft notice of appeal annexed to his affidavit in support of the application for the s 95(b) certificate.
Moreover, the necessity for an important question of law or of public interest to be involved and to be adequately explained in the certificates is clear from the High Court decisions in DJL v Central Authority and Minister for Immigration & Multicultural & Indigenous Affairs and B.

The case of the applicant husband

The husband does not appear to have attempted in his relatively lengthy material to set out the terms of the certificate he would seek – terms which would need to be in the style of the certificate in Minister for Immigration & Multicultural & Indigenous Affairs and B set out in paragraph 28 above.
It has to be recognised that it would be difficult for the husband as a self-represented litigant to draft a certificate in such technical and comprehensive terms as was the certificate drawn in Minister for Immigration & Multicultural & Indigenous Affairs and B. It is therefore necessary that we endeavour to examine the issues which the husband would wish to raise in order to see if an important issue of law or policy exists.
With respect to the husband, his proceedings (both at trial and on appeal) were what can be termed fairly usual parenting and property settlement proceedings. Indeed, that view is confirmed by the grounds of appeal contained in his draft notice of appeal annexed to the affidavit in support of the application for the certificate and which are also contained in the husband’s application for special leave to appeal. Thus they could not be said to give rise to an important question of law or public interest.
It would seem, however, that the husband has endeavoured to elevate his case to one involving an important question of law or of public interest by referring to, and relying on various public criticisms of what can be termed the Family Law Act system and on various reports of Parliamentary Committees. But such a course cannot assist the husband to bring his own case within the scope of s 95(b).
But even if it might be possible to craft such a question from the facts of, and/or judgments given to date in the husband’s proceedings, it is very clear from the various passages from High Court judgments, quoted above, that the better view must be that, save perhaps in the most exceptional circumstances, it is for the High Court, and not this Court, to determine what matters the High Court should entertain. This is particularly so in a case such as the present, where the applicant for the s 95(b) certificate has also filed an application seeking special leave to appeal to the High Court.
We mention also that the husband’s written submissions to us canvass certain constitutional issues, although no ground of appeal contained in either his draft notice of appeal annexed to the affidavit in support of the application for the certificate or in his application to the High Court for special leave to appeal appear to raise any constitutional matters. But even if we were satisfied that the husband was agitating an important constitutional question, we would still consider that the decision as to whether or not that question should be heard by the High Court, should be left to the High Court.
The husband’s final set of written submissions filed on 26 August 2004 indicate that he would now seek an oral hearing of his application. In view of what we have said above concerning the proper principles governing the grant by this Court of certificates under s 95(b), particularly the principle that it is for the High Court to determine the matters it will entertain, no good purpose would be served by us granting the husband a further oral hearing.
We also mention that the husband’s final submissions contain considerable criticism of the wife’s Counsel. This is not an issue which can have any relevance to the application before us.
An issue arose at the hearing before us on 5 July 2004 concerning the inclusion in the appeal type books prepared by the husband in support of this application, of a letter dated 26 November 2002 to the husband from a firm of barristers and solicitors who had previously acted for him. This issue was to be the subject of the further written submissions which we ordered on 5 July 2004. However, we are now satisfied that this issue has no relevance to the matters which we have to decide.
Accordingly, we propose to dismiss the husband’s application for a certificate under s 95(b) of the Act.

Costs of the application

It will be recalled that in the directions made by us on 5 July 2004 for the filing of further submissions we directed that such further submissions should cover the costs of and incidental to the husband’s application for a certificate under s 95(b) (including the costs reserved at the hearing before Holden J on 11 May 2004).
In his submissions filed on 6 August 2004 (paragraphs 84 to 86) the husband explains his difficult financial position. He also seeks a certificate under the Federal Proceedings (Costs) Act 1981 and also or alternatively that the Family Court should pay his costs.
There is no provision which would enable the Court to make an order requiring itself to pay the costs of a litigant. Similarly, the Federal Proceedings (Costs) Act has no application to a case such as the present in which an application for a certificate under s 95(b) is dismissed.
The wife in her submissions filed on 20 August 2004 seeks that in the event that the husband’s application was unsuccessful she should have her costs in the sum of $3,900 which is made up as follows:
(a)Consider husband’s Form 2 Application and attending on Holden CJ for directions on 11th May 2004, 2 hours, $300;
(b)Counsel’s consideration of husbands’ case and preparation of submissions, $1,200;
(c)Attendance before the Full Court on 5^th July 2004, say half day, $1,200;
(d)Consideration of husband’s Amended Submissions and two further volumes of application book and preparation of response, half day, $1,200.
In support of her claim the wife relies on the fact that she is not legally aided, and also on the voluminous material which the husband has filed (and which her legal representatives have therefore had to consider).
Although we acknowledge that the husband’s financial circumstances are poor, we nevertheless consider having regard to the matters contained in s 117(2) of the Act (particularly the husband’s lack of success with his present application and his conduct of the proceedings in the sense of the volume of material which he has filed in support of his application) that the circumstances justify the making of a costs order in favour of the wife in respect of the application for a certificate under s 95(b).
So far as the wife seeks the costs of the hearing before Holden J on 11 May 2004 when the husband sought unsuccessfully to stay the costs order of the Full Court made on 19 March 2004, we consider having read the transcript of that hearing (contained in volume one of the books filed by the husband), that the husband’s lack of success also justifies an order for costs in the wife’s favour.
Accordingly, we will order that the husband pay the wife’s costs of the application before Holden J and of the application determined by this Full Court. We assess such costs at a total sum of $3,900.

Orders

That the husband’s application for a certificate under s 95(b) of the Family Law Act 1975 be dismissed.
That the husband pay the wife’s costs of and incidental to the said application and also the reserved costs of the hearing before the Honourable Justice Holden on 11 May 2004; such costs are assessed in the sum of $3,900.

I certify that the preceding 50 paragraphs are a true copy of the reasons for judgment of this Honourable Full Court

Associate