Manley and Manley (No 2)
[2010] FamCAFC 199
•17 September 2010
FAMILY COURT OF AUSTRALIA
| MANLEY & MANLEY (NO. 2) | [2010] FamCAFC 199 |
| FAMILY LAW - APPEAL – COSTS CERTIFICATES – where the appeal was allowed by consent – oral applications by both parties for costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – costs certificates granted. |
| Federal Proceedings (Costs) Act 1981 (Cth) ss 3(1)(ja), 6 & 9 |
| B and B (Costs certificates) (2007) FLC 93-339 B & B (Costs Certificates) [2007] FamCA 1252 Cramer v Davies (1997) 72 ALJR 146 |
| APPELLANT: | Ms Manley |
| RESPONDENT: | Mr Manley |
| FILE NUMBER: | SYC | 3783 | of | 2008 |
| APPEAL NUMBER: | EA | 95 | of | 2010 |
| DATE DELIVERED: | 17 September 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 17 September 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 15 July 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 707 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Kearney |
| SOLICITOR FOR THE APPELLANT: | Charles Cooper Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mrs Knox |
| SOLICITOR FOR THE RESPONDENT: | Robertson Saxton Primrose Dunn |
Orders by Consent
That the Appeal from the orders of the Federal Magistrates Court at Sydney on 15 July 2010 be allowed.
That Orders 1 and 2 of the Orders of the Federal Magistrates Court at Sydney on 15 July 2010 be set aside.
That the proceedings be remitted for rehearing before a Federal Magistrate of the Federal Magistrates Court at Sydney, other than Federal Magistrate Scarlett.
That the Federal Magistrates Court be requested to relist the proceedings for mention as soon as is possible.
That there be no order for costs.
That the Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
That the Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Manley & Manley (No 2) 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 SYDNEY |
Appeal Number: EA 95of 2010
File Number: SYC 3783 of 2008
| Ms Manley |
Appellant
And
| Mr Manley |
Respondent
EX TEMPORE REASONS
This is an appeal from orders made by Scarlett FM on 15 July 2010.
The Notice of Appeal was filed on 3 August 2010 and by order of Boland J made on 11 August 2010, the hearing was expedited and listed to commence at 10:00 am on 17 September 2010.
On 1 September 2010 the appellant filed a summary of argument and list of authorities. The respondent was due to do the same by 15 September 2010 but, as I understand it, the matter settled and this Court was informed of that circumstance on 16 September 2010. Thus, I assume that the settlement was the reason for the respondent not then filing or needing to file a summary of argument.
The matter has been called on today and I now have before me consent minutes of order resolving the appeal. They provide in summary for the appeal to be allowed, that orders 1 and 2 of the orders of the Federal Magistrate be set aside, that the proceedings be remitted for hearing, that the Federal Magistrates Court list the proceedings for mention as soon as possible and, finally, for an order pursuant to s 9 and s 6 of the Federal Proceedings (Costs) Act 1981 (Cth).
In respect of the latter order, both counsel this morning have made oral applications on behalf of their respective clients for costs certificates pursuant to the Federal Proceedings (Costs) Act1981. The relevant sections are, as I just mentioned, respectively s 9 for the appellant and s 6 for the respondent.
In relation to those two sections, there are effectively four requirements for a costs certificate to be granted under s 9 and three requirements for there to be a costs certificate granted under s 6.
Three of those requirements are common to both sections, namely, first there needs to be a “federal appeal”; secondly, the appeal has to have succeeded on a “question of law”; and, thirdly, the Court being asked to grant the certificate should have heard the appeal.
The additional requirement under s 9 of the Act is that each party to the appeal bears his or her own cost.
Both counsel submit that all of these requirements are met, and I agree with that submission. There is clearly a federal appeal and I refer to s 3(1)(ja) of the Act.
It is also apparent from my reading of the judgment of the Federal Magistrate, the Notice of Appeal and the written summary of argument filed on behalf of the appellant, that his Honour made an error of law. That is conceded by the respondent and, as I say, having read his Honour’s judgment I can see merit in that submission. Particularly, and can I just dwell for a moment on the Notice of Appeal and the summary of argument, and reading from the summary of argument at paragraph 16 where it is contended that:
… in circumstances where:
16.1His Honour determined that the Respondent ought to have alternate weekend and holiday time with [C];
16.2such time was equally able to occur in Sydney and/or the Gold Coast;
16.3if properly considered, there ought to have been a recognition of the impact upon [C] of a move to Sydney followed by a possible return to the Gold Coast, particularly from a school in which she was settled and had expressed a wish not to be removed from;
and finally, the court, and this is significant in my view, apparently was “able to allocate final hearing dates in October 2010”.
In those circumstances, it is submitted that the court below “ought to have given serious consideration to, if not arriving at, an arrangement whereby [C] could continue in her place of residence and school pending final hearing and the Respondent’s relationship and time with [C] could continue.”
It seems to me that if the appeal had proceeded that is clearly an arguable ground or grounds of appeal.
In relation to whether this Court can be treated as having heard the appeal, there is now ample authority in this Court and also the High Court that what has happened here satisfies that requirement. In particular I refer to the decision of Kirby J in Cramer v Davies (1997) 72 ALJR 146 where his Honour adopted a broad interpretation of the hearing such that it required no more than having the matter listed before the court so that the court may dispose of the appeal in a public and formal way.
That approach has been followed in this Court in such cases as B & B (Costs Certificates) [2007] FamCA 1252 and B and B (Costs certificates) (2007) FLC 93-339. Now, it is apparent that that is what has occurred here.
With the fourth requirement under s 9, as I have termed it, it can be seen from the orders to be made by consent that there is no order for costs sought in favour of either party. I suppose I might though, to make it abundantly clear, if counsel agree, make a further order by consent that there be no order as to costs.
Thus I am satisfied that all necessary preconditions for the grant of a certificate under s 9 to the appellant and under s 6 to the respondent exist. I am also satisfied that this is an appropriate case in which to exercise the discretion to grant such certificates.
On that basis, I make the following orders by consent.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 17 September 2010.
Associate:
Date: 13 October 2010
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