SABLES & NEWMAN
[2016] FamCAFC 75
•28 April 2016
FAMILY COURT OF AUSTRALIA
| SABLES & NEWMAN | [2016] FamCAFC 75 |
| FAMILY LAW – COSTS – Costs Certificates – Where the appeal was finalised by consent – Where the Full Court satisfied itself, upon reading the appeal record, that an appealable error had been established – Whether the Full Court had “heard the appeal” for the purposes of granting each of the parties a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Costs certificates granted. |
Family Law Act 1975 (Cth) s 60CC(2A)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9
B & B (Costs Certificates) (2007) FLC 93-339
Cramer & Davies (1997) 72 ALJR 146
| APPELLANT: | Ms Sables |
| RESPONDENT: | Mr Newman |
| FILE NUMBER: | SYC | 3874 | of | 2014 |
| APPEAL NUMBER: | EA | 50 | of | 2016 |
DATE DELIVERED: | 28 April 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Ainslie-Wallace & Aldridge JJ |
| HEARING DATE: | 28 April 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 April 2016 |
| LOWER COURT MNC: | [2016] FCCA 722 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Neil Jamieson & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Battey |
| SOLICITOR FOR THE RESPONDENT: | Mills Oakley Lawyers |
Orders
It is ordered by consent:
The appeal filed by the Appellant Mother on 6 April 2016, being appeal EA50 of 2016, be allowed.
The interim parenting Orders made by Judge Scarlett of the Federal Circuit Court of Australia on 4 April be discharged.
The applications be remitted to the Federal Circuit Court of Australia for re-hearing before a judge other than Judge Scarlett.
Further, it is ordered:
There be no order as to costs.
That the court grants to the Appellant Mother 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, would be appropriate for the Attorney General to authorise a payment under that Act to the Mother in respect of the costs incurred by her in relation to the appeal.
That the court grants to the Respondent Father 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, would be appropriate for the Attorney General to authorise a payment under that Act to the Father in respect of the costs incurred by him in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sables & Newman 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 SYDNEY |
Appeal Number: EA50 of 2016
File Number: SYC3874 of 2014
| Ms Sables |
Appellant
And
| Mr Newman |
Respondent
REASONS FOR JUDGMENT
May J
Ms Sables, the mother, filed a notice of appeal on 6 April 2016 against interim orders of Scarlett J made on 4 April 2016. Those orders variously provided for the parenting arrangements of the child, born in 2013, (“the child”) as between the mother and Mr Newman (“the father”). The parents were to have equal shared parental responsibility for the child, with the child living with the mother and spending time with the father as set out in the orders.
The mother has five grounds of appeal:
1.His Honour erred in the documents that he relied upon in determining the matter on 6 July 2015.
2.His Honour erred in determining the issue on an application that was not before him.
3.His Honour erred in not determining the issue on the application filed by the mother on 29 June 2015.
4,His Honour erred in the weight he applied to the allegations of family violence and the application of section 60CC(2A).
5.His Honour erred in applying the evidence to an application that was not before him.
These challenges are better understood when reference is had to the applications of the parties before Judge Scarlett. By an Amended Application in a Case filed on 3 July 2015, the father sought three stages of graduated time with the child, being from the date of the hearing to 1 December 2013, then 2 December 2015 to 2 June 2016, and, finally, 3 June 2016 onwards.
The primary judge made substantially different orders than those sought by the father or the mother. Findings were made about family violence and section 60CC(2A) of the Family Law Act 1975 (Cth) factors, although it would seem neither party asked the primary judge to make such findings.
As previously noted, the mother filed a notice of appeal on 6 April 2016. On 7 April 2016, the solicitors for the father wrote to the Appeals Registry, conceding the appeal and sought a listing for consent orders. On 14 April 2016, the parties wrote to the appeals registry, enclosing the proposed consent orders.
Costs Certificates
It is appropriate to consider the issue of costs before the consent orders are made. The mother filed her Notice of Appeal well within time, being the next day after the orders were made. No further steps in the appeal were taken, as the father conceded the appeal on 7 April 2016, and both parties provided a draft consent order on 14 April 2016.
The draft consent order seeks costs certificates to be issued to both the mother and father pursuant to section 9 and section 6, respectively, of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Act”).
The well-known decision of B&B (Costs Certificates) (2007) FLC 93-339 governs the issue of costs certificates in appeals finalised by consent. The Full Court (Finn, May and Boland JJ) adopted the reasons of Kirby J in Cramer & Davies (1997) 72 ALJR 146, that “a ‘hearing’ means no more than having the matter listed before the court so that it may dispose of the appeal in a public and formal way.”
In view of the agreed error of the primary judge and the nature of that error, it is appropriate that there be no order as to costs. In the circumstances, each party should be granted a costs certificate.
Ainslie-Wallace J
I agree with the orders proposed by May J and her reasons for making those orders.
Aldridge J
I also agree.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 28 April 2016.
Associate:
Date: 28 April 2016
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