Oaks and Udall
[2011] FamCAFC 211
•21 October 2011
FAMILY COURT OF AUSTRALIA
| OAKS & UDALL | [2011] FamCAFC 211 |
| FAMILY LAW – APPEAL – Appeal against decision of a Federal Magistrate conceded without hearing – Court satisfied that appeal would have been successful if argued – Parties’ and Independent Children’s Lawyer's applications for costs certificates of appeal and new trial granted – Court accepted that parties not required to agitate appeal that would have been successful in order to enliven discretion to grant costs certificates |
| Family Law Act 1975 (Cth) s 17(2), Part VIII Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9 |
| SCVG & KLD [2011] HCATrans 285 SCVG & KLD [2011] FamCAFC 100 |
| APPELLANT: | MR OAKS |
| RESPONDENT: | MS UDALL |
| INDEPENDENT CHILDREN’S LAWYER: | SARAH BEVAN FAMILY LAWYERS |
| FILE NUMBER: | PAC | 134 | of | 2009 |
| APPEAL NUMBER: | EA | 152 | of | 2010 |
| DATE DELIVERED: | 21 October 2011 |
| PLACE DELIVERED: | SYDNEY |
| PLACE HEARD: | SYDNEY |
| JUDGMENT OF: | COLEMAN J |
| HEARING DATE: | 21 October 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 22 October 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 1482 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Richardson SC |
| SOLICITOR FOR THE APPELLANT: | Abigails Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Druitt |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid NSW |
| SOLICITOR FOR THE INDEPENDENT CHIDLREN’S LAWYER: | Sarah Bevan Family Lawyers |
Orders
That the appeal be allowed.
That the orders made by Federal Magistrate Harman on 22 October 2010 be set aside.
That the orders setting aside Federal Magistrate Harman’s orders of 22 October 2010 be suspended for a period of 14 days to permit the mother to file and endeavour to have a listing allocated in relation to an application for urgent interim parenting orders.
That these proceedings be remitted for re-hearing before a Federal Magistrate other than Federal Magistrate Harman.
That the Court grants to the Appellant Husband a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 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 Husband in respect of the costs incurred by the Appellant Husband in relation to the appeal.
That the Court grants to the Respondent Wife a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 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 Wife in respect of the costs incurred by the Respondent Wife in relation to the appeal.
That the Court grants to each party a costs certificate pursuant to the provisions of s.8 of the Federal Proceedings (Costs) Act 1981 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 new trial granted by these orders.
IT IS NOTED that publication of this judgment under the pseudonym Oaks & Udall is approved 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 152 of 2010
File Number: PAC 134 of 2009
| MR OAKS |
Appellant
And
| MS UDALL |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
EX TEMPORE
REASONS FOR JUDGMENT
This is an appeal against orders made by Federal Magistrate Harman pursuant to the provisions of Part VIII of the Family Law Act 1975 (Cth) (“the Act”) on 22 October 2010 in parenting proceedings between the parties.
The Court has previously had the benefit of reading the learned Federal Magistrate’s reasons for judgment and becoming concerned about the nature and extent of his Honour’s apparent reliance upon extrinsic materials in circumstances where it was less than readily apparent that either of the parties to the proceedings or the Independent Children’s Lawyer (“ICL”), had been appraised of the likelihood of his Honour having regard to those materials, or any of them prior to the delivery of his Honour’s reasons for judgment
In those circumstances, and given the issue of principle which the appeal appeared to raise and, particularly, having regard to a series of decisions of the Full Court of this Court in which challenges to reliance by Judges in a few instances, Federal Magistrates in numerous instances, upon extrinsic material, was pivotal to the appeals, the Court referred the matter to a bench of three Judges. The appeal was due to be heard by a bench of three Judges today.
Having been advised by Senior Counsel for the appellant, on Tuesday, that the appeal was conceded by the respondent and the ICL, and that the issue which would engage the Court this morning was limited to various applications for costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth), a delegation to a single Judge was sought from, and provided by the Chief Justice, prior to the convening of the Court this morning.
The Court, thus, has jurisdictional competence to make orders disposing of the appeal and to entertain the various applications for costs certificates. It is a matter of record that each of the appellant, the respondent and the ICL, filed submissions in the appeal. A common theme pervades the submissions of all parties. The appellant asserted, the respondent and the ICL conceded and, with respect, in the Court’s view, properly so, that this appeal, had it been agitated and determined by the Full Court, was highly likely to be successful by reference to, if nothing else, the learned Federal Magistrate’s reliance upon extrinsic material in circumstances which, with great respect to his Honour, constituted a denial of natural justice, particularly, as the result of the outcome of the case reflects, to the appellant.
Kirby J some years ago considered the question of costs in a case such as the present. Both the Full Court of the Federal Court and the Full Court of this Court have, subsequently, adopted his wise approach. As is undoubtedly the case here, where there is a high probability or, in this case, probable inevitability of the appeal being successful, had it been agitated, neither the parties to the litigation, nor the Court, are obliged to go through the fiction of running an appeal, and the Court producing a judgment in circumstances where the only possible utility of doing so is to provide a basis for granting costs certificates.
The Court is unaware of the High Court having specifically had occasion to express a view about Kirby J’s approach in the period, which would be a decade now since his Honour suggested it, but it is inconceivable that if that approach did not find favour with the High Court, at some point, the High Court would have not made that clear. If such an approach offended the legislature the provisions of the costs federal proceedings legislation would no doubt have been amended, to remove the scope for granting costs certificates in circumstances such as arise in this case.
In recent weeks, albeit unsuccessful, in a case known as SCVG & KLD [2011] HCATrans 285, Gummow and Bell JJ appear, from the transcript of the special leave application, to have accepted the importance in parenting proceedings in this Court, of compliance with the rules of natural justice in relation to extrinsic materials such as those to which the learned Federal Magistrate referred in this case.
The facts of this case, as they emerge from the reasons for judgment of the learned Federal Magistrate, were materially different from those in SCVG & KLD [2011] FamCAFC 100. In the latter case, the Full Court concluded that whilst the learned Federal Magistrate had referred to extrinsic materials, by way of what he described as “background”, it had not been demonstrated that the undisturbed findings of fact, which were pivotal to the exercise of his discretion, were reliant solely upon such materials. They were consistent with such materials, but had an independent evidentiary foundation which was not successfully challenged in the Full Court.
Inferentially, in refusing special leave on the basis that the application lacked sufficient prospect of success to justify a grant of special leave and, particularly, having regard to some comments of Bell J in the course of the hearing, in terms of “mild rebukes” by the Full Court of the practice of referring, in circumstances which may compromise observance of the principles of natural justice to extrinsic materials, it can, with considerable confidence, be concluded, as the Court does, that had this appeal been agitated to finality, it would have been successful.
It would have succeeded on an issue of principle, namely, the learned Federal Magistrate’s erroneous reliance upon extrinsic materials in circumstances which offended the rules of natural justice. The provisions of the costs federal proceedings legislation are, accordingly, in the Court’s view, properly enlivened, and it is appropriate to grant certificates to each of the parties and the ICL for the appeal to this Court and for the re-hearing, which will be necessary, as a result of the appeal being allowed.
For the record, it not being automatic in this Court that the ICL receive costs certificates, in this case, the ICL filed helpful submissions, and it was entirely appropriate for the ICL to do so, and to seek costs certificates with respect to the appeal and the re-hearing.
No party has sought an order for costs against any other party or the ICL, nor has the ICL sought any order for costs as against either party. No aspect of the case would satisfy the Court, pursuant to section 17(2) of the Act, that the circumstances justify any costs order inter parties.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 21 October 2011.
Associate:
Date: 21.10.2011
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