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 |
| 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
Leave be granted to the applicant to appeal the order made on 24 February 2017.
The appeal be allowed.
The order made on 24 February 2017 be set aside.
The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge O’Sullivan.
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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- QUARTO & EMMERT [2018] FamCAFC 19
- Case
- [2018] FamCAFC 19
- Decision Date
CaseChat Overview and Summary
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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