QUARTO & EMMERT

Case [2018] FamCAFC 19


FAMILY COURT OF AUSTRALIA

QUARTO & EMMERT [2018] FamCAFC 19

FAMILY LAW – NOTICE OF APPEAL – LEAVE TO APPEAL – Where the applicant challenges the exercise of discretion by the trial judge and the adequacy of the reasons – Where there is merit in three of the five grounds of appeal relied on to establish leave to appeal – Where the decision of the trial judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court – Where substantial injustice would result if leave were refused, supposing the decision to be wrong – Leave granted - Appeal allowed – Matter remitted for rehearing by a judge other than the trial judge.

FAMILY LAW – COSTS APPEAL – Where the parties agreed that in the event that the substantive appeal succeeded the costs order should be set aside – Appeal allowed and the costs order set aside.

FAMILY LAW – COSTS – Where both parties sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Costs certificates ordered.

Family Law Act 1975 (Cth) – s 44 and 79
Federal Proceedings (Costs) Act 1981 (Cth) – ss 6, 8 and 9

Federal Circuit Court Rules 2001 – r 13.12

Carlon and Carlon (1982) FLC 91-272
Emamy & Marino (1994) FLC 92-487
Gronow v Gronow (1979) 144 CLR 513
Hedley & Hedley (2009) FLC 93-413
House v The King (1936) 55 CLR 499
Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Lindsey & Christie and Anor [2016] FamCAFC 132
Medlow & Medlow (2016) FLC 93-692
Metwally v University of Wollongong (1958) 60 ALR 68
Montano & Kinross [2014] FamCAFC 231
Rutherford & Rutherford (1991) FLC 92-255
Sharp & Sharp (2011) 50 Fam LR 567
Slocomb & Hedgewood (2015) FLC 93-678
Taffa & Taffa [2014] FamCAFC 106
Wen & Thom [2010] FamCAFC 81
Whitford & Whitford (1979) FLC 90-612

APPLICANT: Mr Quarto
RESPONDENT: Ms Emmert
FILE NUMBER:

DGC

1025

of

2014

APPEAL NUMBERS: SOA 21 & 22 of 2017
DATE DELIVERED: 7 February 2018
PLACE DELIVERED:

Adelaide

PLACE HEARD: Melbourne
JUDGMENT OF: Strickland J
HEARING DATE: 14 September 2017
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 24 February 2017
20 March 2017
LOWER COURT MNC: [2017] FCCA 301
[2017] FCCA 510

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr R Smith
SOLICITOR FOR THE APPLICANT: Peter Lynch
COUNSEL FOR THE RESPONDENT: Mr O’Connor
SOLICITOR FOR THE RESPONDENT: MW Law

Orders

SOA 21 of 2017

  1. Leave be granted to the applicant to appeal the order made on 24 February 2017.

  2. The appeal be allowed.

  3. The order made on 24 February 2017 be set aside.

  4. The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge O’Sullivan.

  5. The court grants to the applicant 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,…

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AGLC
QUARTO & EMMERT [2018] FamCAFC 19
Case
[2018] FamCAFC 19
Decision Date

CaseChat Overview and Summary

In Quarto & Emmert, the applicant sought leave to appeal a decision of the Federal Circuit Court of Australia in relation to family law proceedings. The dispute centred on the exercise of discretion by the trial judge and the adequacy of the reasons provided. The Full Court of the Family Court of Australia was required to determine whether the applicant had demonstrated sufficient merit in their grounds of appeal to warrant the grant of leave, and whether the decision of the trial judge was attended by sufficient doubt to warrant reconsideration.

The Full Court found merit in three of the five grounds of appeal and concluded that the decision of the trial judge was indeed attended by sufficient doubt. The Court was also satisfied that substantial injustice would result if leave were refused, supposing the decision to be wrong. Consequently, the Full Court granted leave to the applicant, allowed the appeal, and set aside the order made by the trial judge on 24 February 2017. The proceedings were remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the trial judge.

The Full Court further ordered that a costs certificate be granted to both parties pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). This was in accordance with the agreement between the parties that, in the event that the substantive appeal succeeded, the costs order should be set aside. Additionally, the Full Court allowed the appeal and set aside the order made on 20 March 2017 by consent.

In summary, the Full Court granted leave to appeal, allowed the appeal, and set aside the relevant orders. Costs certificates were also granted to both parties in respect of their costs incurred during the application for leave to appeal, the appeal, and the re-hearing of the application.

Orders

Orders of the court

SOA 21 of 2017

1.

Leave be granted to the applicant to appeal the order made on 24 February 2017.

2.

The appeal be allowed.

3.

The order made on 24 February 2017 be set aside.

4.

The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge O’Sullivan.

5.

The court grants to the applicant 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 applicant in respect of the costs incurred by him in relation to the application for leave to appeal and the appeal.

6.

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 of the costs incurred by her in relation to the application for leave to appeal and the appeal.

7.

The court grants to each of the parties 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 of the parties in respect of the costs incurred by the applicant and respondent in relation to the re-hearing of the application.

SOA 22 of 2017

8.

By consent the appeal be allowed and order (1) made on 20 March 2017 be set aside.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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