PRUSTA & KERTESCZ

[2014] FamCAFC 116

FAMILY COURT OF AUSTRALIA

PRUSTA & KERTESCZ [2014] FamCAFC 116

FAMILY LAW - APPEAL – COSTS CERTIFICATES – Where the parties agreed that the appeal should be allowed and the orders set aside – Where both parties sought costs certificates in the federal appeal – Where the trial judge had made errors of law – Where the appeal had been heard in the necessary sense – Application allowed.

Federal Proceedings (Costs) Act 1981 (Cth)

B & B (Costs Certificates) (2007) FLC 93-339

Ball & Ball (Costs Certificates) [2007] FamCA 1252

Cramer v Davies (1997) 72 ALJR 146

APPELLANT: Mr Prusta

RESPONDENT: Ms Kertescz

FILE NUMBER: MLC 3470 of 2011

APPEAL NUMBER: SOA 69 of 2013

DATE DELIVERED:: 2 July 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: May, Ainslie-Wallace & Aldridge JJ

HEARING DATE: 2 July 2014

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 8 October 2013

LOWER COURT MNC: [2013] FCCA 1450

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr McQuade

SOLICITOR FOR THE APPELLANT: Morgan Ward Solicitors

COUNSEL FOR THE RESPONDENT: Mr Howe

SOLICITOR FOR THE RESPONDENT: Howe Jenkin

It is ordered

1. That leave be given to appeal from the child support orders contained in paragraph 2 of the orders made by Judge Simpson on 8 October 2013.

It is ordered by consent

1. The appeal from the orders made by Judge Simpson on 8 October 2013 be allowed and the orders set aside.

2. The application for property settlement and departure from the Child Support Assessment be remitted to the Federal Circuit Court.

It is further ordered

1. 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.

2. 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Prusta & Kertescz 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 ADELAIDE

Appeal Number: SOA 69  of 2013
File Number: MLC 3470  of 2011

Mr Prusta

Appellant

And

Ms Kertescz

Respondent

REASONS FOR JUDGMENT

DELIVERED EX TEMPORE

May J

1. On 6 March 2014 the appellant filed an amended notice of appeal against orders of 8 October 2013 by Judge Simpson. Those orders concerned property settlement and departure from the administrative assessment of child support.  

2. We were this morning informed by counsel that the parties had agreed to orders allowing the appeal and setting aside the first instance orders. I note that the parties had complied with all procedural requirements in the preparation of the appeal. This court will make orders by consent allowing the appeal. Counsel for the appellant husband and counsel for the respondent wife have both asked for cost certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) (“the Act”). In my view costs certificates should be allowed in this case.

3. Kirby J in Cramer v Davies (1997) 72 ALJR 146 at [15 – 17] identified three preconditions for the grant of costs certificates:

   ·    The existence of a Federal appeal;

   ·    That the appeal has succeeded on a question of law; and

   ·    That the appeal has been heard.

4. There can be no doubt that these proceedings are a federal appeal. The parties have each filed substantial submissions in relation to the appeal. The appellant has had the cost of filing the appeal books. Both parties are represented by counsel.

5. We intend to allow, as is necessary, leave to appeal the orders in relation to child support.

6. The grounds of appeal in relation to the property settlement relate to orders made by the judge where there was not included a substantial debt. Although the parties gave quite different evidence about the debt, there was no doubt that monies had been borrowed to purchase a property in Europe. The judge decided to in effect ignore that liability.

7. In addition, the grounds of appeal claim that the judge had failed in the exercise of discretion as to the assessment of the contributions of the parties. Unusually, the judge concluded that there had been a negative contribution by the husband. It is probably not necessary to say any more about the reasons other than to observe that in my view there were some errors in the approach to the property settlement.

8. As to the child support, the judge said very little. It can only be observed that it was impossible to tell how the judge came to the conclusion in relation to child support, and thus it is most likely that the child support appeal would have been allowed had it proceeded. The second precondition is fulfilled.

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”. Thus, although the appeal has not been heard in the sense that it is not necessary for us to give reasons for allowing the appeal, the appeal has been heard in the necessary sense.

10. It my view both parties should be given certificates pursuant to the Act and I would order that they each have the necessary certificates.

Ainslie-Wallace J

1. I agree with the reasons outlined by Justice May. This case is one in which the court would not otherwise make a costs order inter parties. I agree with the proposed order to grant the parties cost certificates.   

Aldridge J

1. I also agree.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment delivered ex tempore of the Honourable Full Court delivered on 2 July 2014.

Associate: 

Date:  2 July 2014