Malburon & Anor & Waldlow

[2014] FamCAFC 23

FAMILY COURT OF AUSTRALIA

MALBURON AND ANOR & WALDLOW [2014] FamCAFC 23

FAMILY LAW – APPEAL – COST CERTIFICATES – Where an appeal was allowed in part and orders were made varying the trial Judge’s orders to allow the parties liberty to apply on discrete issues that had not been determined at trial – Two parties and the Independent Children’s Lawyer sought costs certificates under s 6(1) and s 8(1) of the Federal Proceedings (Costs) Act 1981 (Cth) – Whether there was a “new trial” within the meaning of s 8(1) – The orders, properly construed, involved the granting of a new trial – Basis for granting costs certificates under both provisions established.

Federal Proceedings (Costs) Act 1981 (Cth)

Nilant as trustee of bankrupt estate of Macchia v Macchia [2000] FCA 1414
Yates & Yates [2012] FamCAFC 219

FIRST APPELLANT: Ms K Malburon

SECOND APPELLANT: Mrs M Malburon

RESPONDENT: Mr Waldlow

INDEPENDENT CHILDREN’S LAWYER: Browns Family Lawyers

FILE NUMBER: PAC 4429 of 2009

APPEAL NUMBER: EA 144 of 2012

DATE DELIVERED: 21 February 2014

PLACE DELIVERED: Perth

PLACE HEARD: Sydney

JUDGMENT OF: Thackray, Ainslie-Wallace and Aldridge JJ

HEARING DATE: By way of written submissions

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 3 October 2012

LOWER COURT MNC: [2012] FMCAfam 1064

REPRESENTATION

COUNSEL FOR THE FIRST APPELLANT: Self represented litigant

COUNSEL FOR THE SECOND APPELLANT: Self represented litigant

COUNSEL FOR THE RESPONDENT: Ms Druitt

SOLICITOR FOR THE RESPONDENT: Matthews Folbigg Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Snelling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Browns Family Lawyers

Orders

1. There be no order for costs in relation to the appeal.

2. The Court grants to the first appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) 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 first appellant in respect of the costs incurred by her in relation to the appeal.

3. The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) 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 in respect of the costs incurred by him in relation to the appeal.

4. The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) 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 Independent Children’s Lawyer in respect of costs incurred in relation to the appeal.

5. The Court grants to the first appellant, the respondent and the Independent Children’s Lawyer costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred in relation to the rehearing of the issues identified in Order 2 of the orders of the Full Court made on 24 November 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Malburon & Waldlow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 144 of 2012
File Number: PAC 4429 of 2009

Ms K Malburon

First appellant

And

Mrs M Malburon

Second appellant

And

Mr Waldlow

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. On 24 November 2013, we published our reasons for judgment in the substantive matter in this appeal (Malburon & Waldlow [2013] FamCAFC 191).

2. We are now called upon to deal with applications by two of the parties and the Independent Children’s Lawyer for costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) (“the Act”).

Orders made on the appeal

1. Having identified an error of law on the part of the Federal Magistrate, we made orders as follows:

   (2)Order 14 made by Federal Magistrate Henderson on 3 October 2012 be varied to provide as follows:

   14.That all parties have liberty to apply in relation to the implementation of these orders and to seek orders:

   (a)      specifying the time the mother is to spend with the child;

   (b)      relating to handover, both as to venue and cost; and

   (c) relating to costs of time spent at a contact centre pursuant to Order 13.

   (3)The orders made by Federal Magistrate Henderson on 3 October 2012 be varied by the addition of the following order:

   15.The mother have liberty to apply for the discharge of the requirement for supervision contained in Order 6, such liberty not to be exercised until the child attains the age of seven (7) years.

2. We received some oral submissions on costs at the conclusion of the hearing of the appeal but, for reasons we need not explain, our orders also provided for the parties to make further written submissions in relation to costs.

The submissions

1. We have now received costs submissions from the Independent Children’s Lawyer, filed on 4 December 2013, the respondent (“the father”), filed on 12 December 2013, and from the first appellant (“the mother”) on 18 December 2013. No orders for costs have been sought, but each set of submissions requests the granting of costs certificates pursuant to the Act.

2. In their written submissions, the Independent Children’s Lawyer and the mother each sought certificates under the Act, both in relation to the appeal itself and in relation to the further hearing contemplated by Order 2 of our orders. The applications relating to the costs of the further hearing rely on s 8 of the Act, which provides as follows:

   8 Costs certificates—new trials

   (1) Subject to this Act, where, in a Federal appeal that succeeds on a question of law, the court that heard the appeal grants a new trial in a cause of a civil nature, the court may, on the application of a party to the cause, grant to the party a costs certificate in respect of the new trial.

3. The father also sought certificates for the appeal and for the further hearing; however, the following submissions provided by his solicitor properly recognise that there may be some doubt whether s 8(1) has any application:

   3.Given that the Full Court has not remitted the matter directly for re-hearing but has provided the parties with ‘liberty to apply’ in relation to a number of matters it would, in the First Respondent’s submission, not be usually the case that a costs certificate would issue pursuant to section 8(1) of the Federal Proceedings (Costs) Act 1981 (‘the Act’).  It is possible that neither party would exercise the liberty.

   4.However in this matter the mother had – at the time of judgement – already filed an Application in a Case (filed on 25 November 2013) seeking orders for:

   a.        Equal shared parental responsibility and

   b.Defined time with [T] (from 3pm Saturday until 3pm the next Saturday in a fortnight cycle).

   and that application remains before the Federal Circuit Court in Parramatta – returnable on 11 February 2014.

   5.Despite significant procedural irregularities with the mother’s most recent application it seems inevitable that the litigation in this matter will be ongoing and that the mother does not intend to seek simply orders proposed by the father or the ICL at the first trial but orders which are likely to require substantive litigation.

   6.Given Federal Magistrate Henderson’s findings in relation to the mother’s behaviour and attitude to the father – which was undisturbed on Appeal – the father submits that a costs certificate is appropriate in the circumstances Accordingly the First Respondent father seeks that the Full Court exercises their discretion and issue a certificate pursuant to section 8(1) of the Act as well as in relation to the Appeal.

Discussion

1. When handing down our judgment on the substantive matter, we said:

   152.As presently advised, there would seem little basis for a costs order; however, there is a prospect of costs certificates being provided under the Federal Proceedings (Costs) Act 1981 (Cth), since the appeal has succeeded, albeit only in part, on a question of law. The mother and grandmother were self represented, but may have incurred some costs, including those related to preparing appeal books.

2. The basis for granting costs certificates under s 6 and s 9 of the Act has been established since there will be no order for costs (none having been sought) and because the appeal succeeded on a question of law – see s 6 and s 9 of the Act.

3. We are satisfied, in the exercise of our discretion, that costs certificates for the appeal should be granted to the mother, the father and the Independent Children’s Lawyer, all of whom have “incurred costs in circumstances beyond their control” (Yates & Yates [2012] FamCAFC 219 at [23]). In being prepared to grant a certificate to the Independent Children’s Lawyer, we note that he was not an employee of “an authority of the Commonwealth, of any State or of any Territory”, and hence is eligible to receive a certificate (see s 14(1)(e) of the Act and Yates & Yates at [26]).

4. The question arises, however, whether Order 2 of our orders constituted the granting of a “new trial” so as to enliven the discretion conferred by s 8(1). If it did not, we cannot grant certificates for any future hearing.

5. A not dissimilar issue arose in Nilant as trustee of bankrupt estate of Macchia v Macchia [2000] FCA 1414 (“Macchia”), where the Full Court of the Federal Court allowed an appeal on a question of law and ordered that “the matter be remitted to [the trial judge] for further consideration”.  When determining whether or not costs certificates could be granted for the further hearing before the trial Judge, the Full Court pointed out that:

   [9]The Court did not, in terms, “grant a new trial”, but remitted the matter to the learned primary judge “for consideration of any alternative basis upon which to determine the actual period of the respondent’s bankruptcy.

6. Their Honours were nevertheless prepared to accept that the “further consideration” which they had ordered would constitute a “new trial”. They granted a certificate under s 8 of the Act because “the second hearing became necessary as a consequence of the error of law identified by the Full Court …” (Macchia at [16]).

7. The order in Macchia clearly differs in form from the order we made here, since in that case the proceedings were expressly “remitted” to the trial Judge, whereas we varied the Federal Magistrate’s orders so as to give liberty to the parties to apply in relation to specified matters.

8. In deciding whether or not our orders constituted the granting of a “new trial” within the meaning of the Act, it is instructive to consider what we said, under the heading “Re-exercise of remitter”, when explaining the orders we proposed to make disposing of the appeal:

   145.Having found merit in the appeal, we must determine whether to re-exercise her Honour’s discretion or remit the matter (either to her Honour or to another judicial officer) to deal with the issues we have identified above.   

   146.In our view, whether we re-exercise or remit, the outcome should be the making of orders to ensure, if practicable, that the mother spends specified times with the child.  As presently advised, those times should either be those proposed at trial by the father or by the Independent Children’s Lawyer, to be supervised by the grandmother if she is available.  Orders should also be made dealing with arrangements for handover, the costs (if any) associated with handover and the costs of any time spent at a contact service.  The orders proposed by the father at trial in relation to these latter topics, would appear to be appropriate. 

   147.We are, however, reluctant to make any orders without hearing further from the parties, since the detail we consider necessary in such orders would need to be synchronised with the arrangements contained in the consent orders relating to the grandmother’s own time with [T].  Furthermore, now it is known that the challenge to the order for supervision has failed, the grandmother may be in a position to be more definite about her availability to supervise.  This in turn may inform the decision as to whether the orders proposed by the father or the Independent Children’s Lawyer are to be preferred.

   148.Given the parameters we have laid down, we do not consider it beyond the realm of possibility that the parties may be able to resolve these issues by negotiation, in which case consent orders could be made by a judge at first instance.  But if agreement cannot be reached, we consider the most expedient course is for us to vary the “liberty to apply” provision so as to permit all parties to apply in relation to the implementation of the Federal Magistrate’s orders, on the basis that this would permit the parties to seek orders:

   ·    specifying the time the mother is to spend with the child;

   ·    relating to handover (both venue and cost); and

   ·    relating to costs associated with any time spent at a contact service. 

   149.Given the Federal Magistrate’s extensive involvement in the matter, we do not consider it necessary to direct that any application made pursuant to the proposed expanded “liberty to apply” provision be listed before another judicial officer.  However, if her Honour is not available to hear the matter or otherwise elects not to hear it, there appear to us to be more than sufficient findings of fact to allow another judicial officer to step in to resolve the issues left outstanding. 

9. In making those remarks, and in formulating our orders, we were hoping to encourage the parties to explore resolution of the outstanding issues without the necessity for a further trial, rather than directly remitting the matter to the Federal Magistrate as if a further hearing was inevitable.  Properly construed, our orders constituted the granting of a “new trial” because they permitted the agitation of issues which we found should have been determined by the Federal Magistrate at the first trial, but which otherwise could not have been agitated pursuant to the terms of the orders originally made by her Honour.     

10. We are satisfied, in the exercise of our discretion, that costs certificates should be granted to the mother, the father and the Independent Children’s Lawyer in relation to any further hearing as provided for in Order 2 of the orders of the Full Court made on 24 November 2013.  Such a hearing only became necessary as a result of the errors of law we identified in our earlier reasons.

11. Given the mother is self-represented, we should make clear that the certificate granted to her under s 8 of the Act would not extend to any proceedings which she might later decide to institute pursuant to Order 3 of our earlier orders. Such proceedings would not constitute a “new trial”, but rather a trial directed to an issue that has not yet arisen. Nor would the certificate extend to proceedings the mother might institute, or have already instituted, relating to matters that are outside the scope of Order 2 of our earlier orders.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 21 February 2014

Associate: 

Date:  21 February 2014