Pearson and Pearson-Garrett
[2012] FamCAFC 14
•6 February 2012
FAMILY COURT OF AUSTRALIA
| PEARSON & PEARSON-GARRETT | [2012] FamCAFC 14 |
| FAMILY LAW – APPEAL – Matter settled by way of consent – Where it was agreed an error of law had been made – Appeal allowed. FAMILY LAW – COSTS – Where there had not been a full hearing of the submissions on appeal – Where there were proper arguments to be agitated on appeal – Costs certificates ordered for each party pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). |
| Child Support (Assessment) Act 1989 (Cth) Family Law Act 1975 (Cth) Federal Magistrates Court Rules 2001 (Cth) r 25A.08 Federal Proceedings (Costs) Act 1981 (Cth) |
| Ball & Ball (Costs Certificates) [2007] FamCA 1252 B & B (Costs Certificates) (2007) FLC 93-339 |
| APPELLANT: | Mr Pearson |
| RESPONDENT: | Ms Pearson-Garrett |
| FILE NUMBER: | BRC | 11342 | of | 2009 |
| APPEAL NUMBER: | NA | 76 | of | 2011 |
| DATE DELIVERED: | 6 February 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 6 February 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 12 September 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 858 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Best Wilson Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Alexander |
| SOLICITOR FOR THE RESPONDENT: | Dean Kath Kohler |
Orders
IT IS ORDERED BY CONSENT:
Leave to appeal the orders of Federal Magistrate Coates made 12 September 2012 be granted.
The appeal be allowed.
The application be remitted for re-hearing before a Federal Magistrate other than Federal Magistrate Coates.
There be no order as to costs.
IT IS FURTHER ORDERED:
The court grants to the 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 appellant in respect of 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) 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 the respondent in relation to the appeal.
The court grants to each of the parties a costs certificate pursuant to the provisions of s 8 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 each of the parties in respect of the costs incurred by the appellant and respondent in relation to the re-hearing of the application.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pearson & Pearson-Garrett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.
| IN THE APPELLATE JURISIDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 76 of 2011
File Number: BRC 11342 of 2009
| Mr Pearson |
Appellant
And
| Ms Pearson-Garrett |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
The appellant father filed a notice of appeal on 7 October 2011 against the orders of Federal Magistrate Coates made 12 September 2011. Those orders provided:
(1)That the Application filed by the husband on 6 June 2011 be dismissed.
(2) That the Child Support Agreement be amended to include:-
“That if the child, [J] lives primarily with the father for a period of more than one (1) month, the father will not be required to pay child support during that time. The child support will be required to re-start after one (1) month if [J] returns to live primarily with his mother. For the purposes of this clause, “primarily” means more than four (4) days and five (5) nights a week on average.”
(3)That the arrears in child support currently owed by the husband as at the date of date of judgment be paid in full to the wife within 60 days of the date of the Order.
The notice of appeal asserts seven grounds. In summary, it is said that his Honour erred in first, dismissing the father’s application to set aside a binding child support agreement, and second, in “amending” the binding financial agreement (noting that s 137 of the Child Support (Assessment) Act 1989 (Cth) was not applicable to his decision, in circumstances where the binding child support agreement had not been set aside pursuant to s 136).As a consequence of such errors the exercise of discretion miscarried by ordering that the father pay to the mother the arrears in full within 60 days.
In addition, and this was conceded by Mr Alexander of counsel who appears for the mother, his Honour failed to afford the father procedural fairness in accordance with the litigant in person guidelines (specifically in failing to alert the father to rule 25A.08 of the Federal Magistrates Court Rules 2001 (Cth) and in failing to address with the father the court’s “immediate reaction” as mentioned at paragraph 54(d) of the reasons).
The summary of argument relied upon by the appellant father in this appeal was filed on 23 January 2012. This document contains the arguments both in relation to the need to obtain leave to appeal and comprehensive submissions in relation to the appeal itself.
On 2 February 2012 a minute of consent was filed indicating that this appeal had been resolved between the parties. They have agreed that leave to appeal should be granted and that the appeal should be allowed.
It is apparent to me also that this appeal must be allowed and it would be impossible really, for a court to reconsider the matter in the absence of some further evidence. Inevitably, the matter needs to be remitted for re-hearing to a Federal Magistrate other than Federal Magistrate Coates.
Correctly it seems in these circumstances the parties have agreed that there should be no order as to costs as between the parties. The only matter really for my consideration is the question of the application by each of the parties for costs orders pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
I have taken into account the very neat summary Ms Harding has given to me this morning in relation to costs. It is obvious his Honour misdirected himself as to the appropriate law to be applied in this case. It also seems there were numerous errors in the findings of fact.
The court has previously considered the question of whether costs certificates should be awarded for appeals in which the parties have agreed should be allowed. Oral submissions were made by Mr Alexander. As mentioned I have comprehensive submissions provided to me this morning by the solicitor for the father, setting out in detail the provisions that I must consider, together with the cases Ball & Ball (Costs Certificates) [2007] FamCA 1252 and B & B (Costs Certificates) (2007) FLC 93-339).
In this case it is entirely clear that it was necessary for there to be an appeal and it is entirely clear that it is necessary for the appeal to be allowed. Costs certificates in this case should be granted.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 6 February 2012.
Associate:
Date: 8 February 2012
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