Sabat and Paar

[2014] FamCAFC 45

FAMILY COURT OF AUSTRALIA

SABAT & PAAR [2014] FamCAFC 45

FAMILY LAW – APPEAL – Where the respondent concedes that the appeal should be allowed – Where the primary judge made material errors of fact – Where it is appropriate to order a costs certificate to both parties – HELD – appeal allowed.

Family Law Act 1975 (Cth): ss 79, 94AAA

Federal Proceedings (Costs) Act 1981 (Cth)

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

APPELLANT: Ms Sabat

RESPONDENT: Mr Paar

FILE NUMBER: CAC 1770 of 2011

APPEAL NUMBER: EA 129 of 2013

DATE DELIVERED:: 27 March 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 27 March 2014

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 14 August 2013

LOWER COURT MNC: [2013] FCCA 993

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Webster

SOLICITOR FOR THE APPELLANT: N/A

COUNSEL FOR THE RESPONDENT: Mr Howard

SOLICITOR FOR THE RESPONDENT: Elizabeth Fleming & Associates

By consent it is ordered

1. That the appeal be allowed.

2. That the orders made by Judge Brewster on 14 August 2013 be set aside.

3. That the matter be remitted to the Federal Circuit Court for hearing by a judge other than Judge Brewster.

4. That there be no order as to costs.

It is further ordered

1. That the court grants to the appellant wife 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 appellant wife in respect of the costs incurred by her in relation to the appeal.

2. That the Court grants to the respondent husband 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 husband in respect of the costs incurred by him in relation to the appeal.

3. That the Court grants to each party 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 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 by this Court under the pseudonym Sabat & Paar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 129 of 2013
File Number: CAC 1770 of 2011

Ms Sabat

Appellant

And

Mr Paar

Respondent

REASONS FOR JUDGMENT

1. The appellant, Ms Sabat (“the wife”) filed a Notice of Appeal on

   
   

   5 September 2013 against an order made pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) by Judge Brewster on 14 August 2013. She filed an amended Notice of Appeal on 12 December 2013.

2. As well as other orders in relation to the adjustment of property, the primary judge ordered the wife to pay Mr Paar (“the husband”) $288,500. 

3. The wife’s Amended Notice of Appeal asserts a range of errors of fact and law by the primary judge in finding that the orders he made were just and equitable.  The husband agrees that the appeal should be allowed.  In making this concession, he adopted ground 2 of the wife’s Amended Notice of Appeal, which in essence, said that the primary judge understated the wife’s capital contribution to their property by approximately $500,000 and overstated the husband’s contribution to that property by the same amount.  Lest there be any doubt about it, the value of these contributions were agreed in the court below and the findings made by the primary judge was inconsistent with the evidence and the parties’ agreement.

4. Although the appeal had not yet been listed for hearing, both parties have incurred legal expenses and undertaken not insignificant work in relation to the appeal.

5. In this case, the Chief Justice issued a direction in accordance with s 94AAA of the Act.

6. I agree with the parties that the appeal should be allowed.  Consequent upon the appeal being allowed, the parties each sought certificates pursuant to the Federal Proceedings Costs Act 1981 (Cth) for both the appeal and rehearing. In order to succeed, three matters needed to be established. Namely (per B & B (Costs Certificate) (2007) FLC 93-339) :

   ·the existence of a federal appeal;

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

   ·that the court concerned should have heard the appeal.

7. In addition, an appellant must establish that he or she will bear their own costs.

8. Each matter is established.

9. It is clear that it was reasonable for there to be an appeal and for the husband to agree that the appeal should be allowed and the matter remitted for rehearing before a judge other than Judge Brewster.  The parties have incurred legal expenses and, accordingly, I am of the opinion that costs certificates should be granted to both parties.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 27 March 2014.

Associate:     

Date:              27 March 2014