Martin and Payne
[2014] FamCAFC 192
•2 October 2014
FAMILY COURT OF AUSTRALIA
| MARTIN & PAYNE | [2014] FamCAFC 192 |
| FAMILY LAW – APPEAL – Costs certificates – Where the appeal was allowed by consent – Matter remitted for re-hearing – Costs certificates granted. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) Federal Circuit Court Rules 2001 (Cth) |
| B & B (Costs Certificates) (2007) FLC 93-339 Caballes & Tallant [2014] FamCAFC 112 Cramer v Davies (1997) 72 ALJR 146 Prusta & Kertescz [2014] FamCAFC 116 |
| APPELLANT: | Ms Martin |
| RESPONDENT: | Mr Payne |
| FILE NUMBER: | LEC | 456 | of | 2010 |
| APPEAL NUMBER: | NA | 17 | of | 2014 |
| DATE DELIVERED: | 2 October 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Strickland and Kent JJ |
| HEARING DATE: | 2 October 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 February 2014 |
| LOWER COURT MNC: | [2014] FCCA 664 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms McDiarmid |
| SOLICITOR FOR THE APPELLANT: | GL Legal Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Kirkman-Scroope |
| SOLICITOR FOR THE RESPONDENT: | Jensens Solicitors & Attorneys |
Orders
it is ordered:
The appeal be allowed.
The orders made by Judge Howard on 24 February 2014 be set aside.
The matter be remitted to the Federal Circuit Court for re-hearing before a judge other than Judge Howard.
There be no order as to the costs of the appeal pursuant to s 117 of the Family Law Act 1975 (Cth).
The Court grants to the appellant a costs certificate pursuant to the provisions of 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 that Act to the appellant in respect to the costs incurred by the appellant in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of 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 that Act to the respondent in respect to the costs incurred by the respondent in relation to the appeal.
The Court grants to each party a costs certificate pursuant to the provisions of s 8 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 that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the re-hearing.
The Court notes:
The respondent shall discontinue his costs application in the Federal Circuit Court.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Martin & Payne 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 BRISBANE |
Appeal Number: NA 17 of 2014
File Number: LEC 456 of 2010
| Ms Martin |
Appellant
And
| Mr Payne |
Respondent
REASONS FOR JUDGMENT
Delivered Ex Tempore
Kent J
By Amended Notice of Appeal filed 1 August 2014 Ms Martin (“the mother”) appeals against orders made by Judge Howard on 24 February 2014 on the father’s application for contravention of parenting orders. Mr Payne (“the father”) is the respondent to that appeal.
The appeal by the mother was listed for hearing before this Full Court this morning, that is, Thursday 2 October 2014.
On 5 September 2014 the Court was informed by the parties’ respective legal representatives that the parties had agreed that the appeal ought be allowed and that the matter ought be remitted for re-hearing. On 26 September 2014 the mother and the father signed minutes of consent orders which provided, in summary, that the appeal be allowed, that the orders made by Judge Howard on 24 February 2014 be set aside, that the matter be remitted for re-hearing before a judge other than Judge Howard and that there be no order as to costs of the appeal.
Further the consent minutes sought orders that costs certificates be granted to the father and the mother respectively with respect to the appeal pursuant to sections 6 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) and that each party be granted a costs certificate for the re-hearing pursuant to s 8 of the Costs Act.
Pursuant to s 94AAA(8)(b) of the Family Law Act 1975 (Cth) (“the Act”) a single Judge or a Full Court may:
(b)make an order by consent disposing of an appeal under subsection (1) or (1A) (including an order for costs); …
B & B (Costs Certificates) (2007) FLC 93-339 and the judgment of Kirby J in Cramer v Davies (1997) 72 ALJR 146 set out the following matters to which a court must have regard in deciding whether to grant costs certificates pursuant to the Costs Act in an appeal:
1. The matter concerned is a Federal Appeal;
2. The appeal has succeeded on a question of law; and
3. The appeal was heard.
The appeal before us was plainly a Federal Appeal as that term is defined in s 3(1)(ja) of the Costs Act, being an appeal to this Court from a judgment of the Federal Circuit Court.
With regard to the second requirement, on 26 and 29 September 2014 the parties respectively each filed written submissions addressing the grounds of appeal they contend are made out which form the basis for allowing the appeal and remitting the matter for re-hearing and also addressing the issue of costs certificates.
Based on those submissions, it is agreed by both parties that the appeal is to be allowed on the basis that there was an error of law in that the learned trial judge failed to afford the mother procedural fairness and departed from the procedure required at a contravention hearing as contained in r 25B.04 of the Federal Circuit Court Rules 2001 (Cth). In particular, both parties agree that the learned trial judge did not adhere to the prescribed procedure in that:
a)the learned trial judge did not inform the mother of each allegation;
b)the learned trial judge did not ask the mother whether she wished to admit or deny the allegations;
c)the learned trial judge did not ask the mother to state her response to the allegations; and
d)the learned trial judge did not invite submissions at the appropriate time as to whether a prima facie case had been established.
In addition the parties contend that once the learned trial judge decided to depart from the prescribed procedure for a contravention hearing, in accordance with the decision in Caballes & Tallant [2014] FamCAFC 112, it was incumbent upon his Honour to explain the altered procedure to the parties, which his Honour failed to do.
Further both parties rely on the principle applied by Kirby J in Cramer v Davies (1997) 72 ALJR 146 where his Honour cites Escobar v Spindaleri (1986) 7 NSWLR 51 and stated at [16]:
… the basis of the ‘success’ was a recognition by all parties that an error of law had occurred at trial in the Family Court. At least in proceedings such as are described, it is an error of law where a judge does not conform to the requirements of procedural fairness (natural justice).
I am satisfied of the errors of law submitted by both parties and that the appeal must succeed on that basis.
With respect to the third pre-condition, in Prusta & Kertescz [2014] FamCAFC 116 May J in her judgment on behalf of the Full Court (May, Ainslie-Wallace & Aldridge JJ), observed at [9]:
9.A broad interpretation of the third precondition has been applied by this court in authorities such as Ball & Ball (Costs Certificates) [2007] FamCA 1252 and B & B (Costs Certificates) (2007) FLC 93-339, where the parties sought cost certificates after the appeals were allowed by consent. For a matter to be “heard”, it need only be “listed before the court so that it may dispose of the appeal in a public and formal way”. …
The requirement is satisfied here.
Further, pursuant to s 9 of the Costs Act, if the appellant is to be granted a costs certificate it is necessary that there be no order as to costs pursuant to s 117 of the Act. This additional requirement is satisfied here as neither party has sought an order for costs pursuant to s 117 of the Act and in the circumstances that is appropriate.
For these reasons I would allow the appeal and set the order made below aside and remit the matter for re-hearing and grant each party the costs certificates sought pursuant to the Costs Act.
Strickland J
I agree with the reasons given by Kent J and the orders proposed by his Honour and I have nothing further to add.
May J
I also agree with the reasons given by Kent J.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Strickland & Kent JJ) delivered ex tempore on 2 October 2014.
Associate:
Date: 2 October 2014
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