SABLES & NEWMAN - [2016] FamCAFC 75

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

2014

APPEAL NUMBER:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SABLES & NEWMAN

Details

AGLC: SABLES & NEWMAN [2016] FamCAFC 75
Case: [2016] FamCAFC 75
Decision Date: 28 April 2016

CaseChat Overview and Summary

The appeal in Sables & Newman was brought by the mother against an order made by the Federal Circuit Court of Australia concerning the parenting of her child. The mother had sought to appeal the interim parenting orders made by Judge Scarlett, which were subsequently discharged by the court. The appeal was allowed by consent, and the matter was remitted for re-hearing before a different judge.

The legal issues before the court involved the interpretation and application of the Family Law Act 1975 (Cth) in the context of interim parenting orders. The mother challenged the decision made by Judge Scarlett, arguing that the orders did not adequately reflect the best interests of the child. The court was required to determine whether the appeal should be allowed and if so, what orders should be made in relation to the costs and the re-hearing of the matter.

The court found that the appeal should be allowed as the orders made by Judge Scarlett did not adequately consider the best interests of the child. The court considered that the matter should be re-heard before a different judge to avoid any potential bias or conflict of interest. The court also granted costs certificates to both parties under the Federal Proceedings (Costs) Act 1981 (Cth), recognising the costs incurred by both the mother and the father in relation to the appeal.

The final orders of the court included the discharge of the interim parenting orders, the remission of the matter for re-hearing before a different judge, and the granting of costs certificates to both parties. There was no order as to costs between the parties, reflecting the court's recognition of the significant costs incurred by both parties in the appeal process.

Orders

Orders of the court

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.

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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