Sands and Ralston (No 2)
[2015] FamCAFC 216
•13 November 2015
FAMILY COURT OF AUSTRALIA
| SANDS & RALSTON (NO. 2) | [2015] FamCAFC 216 |
| FAMILY LAW – APPEAL – COSTS – Costs certificate – Whether the court should grant each party a costs certificate for the appeal – Where the appeal was ultimately conceded by the respondent – Where the appeal is allowed on an error of law – Where the appellant is entitled to a costs certificate – Where the case propounded at first instance contributed to the error – Where the court declines to grant a costs certificate to the respondent. |
| Family Law Act 1975 (Cth) |
Federal Proceedings (Costs) Act1981 (Cth)
Rice & Asplund (1979) FLC 90-725
| APPELLANT: | Ms Sands |
| RESPONDENT: | Mr Ralston |
| FILE NUMBER: | PAC | 4699 | of | 2008 |
| APPEAL NUMBER: | EA | 135 | of | 2015 |
| DATE DELIVERED: | 13 November 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Aldridge and Cronin JJ |
| HEARING DATE: | 28 October 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 July 2015 |
| LOWER COURT MNC: | [2015] FCCA 1873 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Blackah |
| SOLICITOR FOR THE APPELLANT: | Godden Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms De Vere |
| SOLICITOR FOR THE RESPONDENT: | Smythe Wozniak Lawyers |
Orders
The Court grants to the appellant 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 in respect of the costs incurred by the appellant in relation to the appeal.
The respondent's application for a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sands & Ralston 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: EA 135 of 2015
File Number: PAC 4699 of 2008
Ms Sands
Appellant
And
Mr Ralston
Respondent
REASONS FOR JUDGMENT
These reasons are confined to the discrete issue in this appeal as to whether the court should grant each party a certificate for the appeal under the Federal Proceedings (Costs) Act 1981 (Cth) (“the Act”).
At the appeal, it was ultimately conceded by the respondent that the orders of the trial judge had to be set aside. Subsequent to reserving our decision on the costs certificates issue, we received a further submission from counsel for the respondent (with the consent of counsel for the appellant) as to what took place at the hearing in the Federal Circuit Court when the orders under appeal were made and reasons were published. Although we would not ordinarily accept unsolicited further submissions after we reserved our decision, it is expedient we do so here. We have taken that submission into account.
By way of overview, Ms Sands (“the appellant”) appealed against an order made by Judge Dunkley on 15 July 2015 dismissing her Application in a Case filed on 9 July 2014. She had sought both interim and final orders which, taken together, would have had the effect of varying parenting orders made by consent in 2009 providing for an equal shared parenting arrangement of two children. The respondent to the appeal, Mr Ralston (“the respondent”), had opposed the application seeking (inaptly) that the “interim” application be dismissed (making no mention of the appellant’s application for final orders).
The respondent’s case was conducted before the trial judge on the basis that the requirement for the appellant to show a change of circumstances according to the principles in Rice & Asplund (1979) FLC 90-725 had not been made out. His Honour heard the matter in May 2015 and reserved judgment until
15 July 2015 when his Honour found in the respondent’s favour and dismissed the appellant’s interim and final applications.
If there was any doubt about the appropriateness of the 2009 orders at the hearing in May 2015, that must have been dispelled by the day of the judgment on 15 July 2015. In between those dates, albeit the causes are disputed, one child ran away from the respondent in the early hours of the morning and on a subsequent occasion, both children ran away from the respondent to the appellant. Those events could not have but indicated a problem warranting investigation and failing agreement by the parties as to the appropriate response, further consideration by the court of the children’s living arrangements. The intervening events caused the appellant to file a further Application in a Case on 9 July 2015 the effect of which was for leave to re-open the reserved proceedings. It was listed to his Honour on the day of the judgment, 15 July 2015.
Notwithstanding the fresh application was listed, it seems to be common ground that it was not brought to his Honour’s attention prior to the delivery of judgment.
Had the evidence in the affidavit supporting the Application been drawn to the attention of the trial judge, the circumstances of the parties may very well have been different. In the appeal, counsel for the respondent conceded that there were now circumstances warranting the setting aside of his Honour’s orders and a reconsideration of the parenting orders. Thus, the appeal had to be allowed and the substantive application remitted for hearing before a judge other than Judge Dunkley. The orders we then made were consistent with that concession.
No order for costs was sought by either party against the other but each applied for a certificate under the Act in relation to the appeal.
In our view, the appellant is entitled to a certificate under the Act. This is a federal appeal which has been allowed on the basis of an error of law. The appellant placed evidence before the trial judge which justified the reconsideration of the 2009 orders and advanced arguments which ought to have seen her application proceed. The strong case she presented at first instance would only have been strengthened by the later filed evidence. Apart from drawing the supervening evidence to the attention of the trial judge before the orders were pronounced, we are not sure what else the appellant could have done to provide the court with the necessary evidence.
The respondent is in a different position. One piece of uncontroversial evidence before the trial judge in May 2015 was the notes and views of a psychologist to whom the appellant had been referred by the children’s general medical practitioner for what the doctor described as “anxious symptoms”. That was in February 2014 and when the respondent became aware of the involvement of the psychologist, rather than participate or even offer to meet with her, he took a combative approach, warning her through his lawyers that he would make a report to her relevant professional body if she continued seeing the children.
Even if there was some justification for the respondent’s approach, as we have already mentioned the situation deteriorated further subsequent to the hearing in May 2015 when judgment was reserved.
By the judgment date, the respondent well knew of the problems of the children, even if he pointed the metaphorical finger at the appellant for having created them. Thus, the respondent’s approach of litigating up to the commencement of the appeal is perplexing.
Having regard to the amount of court resources that have been allocated to this expedited appeal and notwithstanding the belated concession by counsel for the respondent that there has been an error of law, we consider that there can be no doubt that the case which he propounded to the trial judge contributed in a real way to his Honour’s error and we consider it inappropriate to expect the public purse to meet any of his costs associated with this appeal.
We therefore decline to grant a costs certificate for the respondent.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Cronin JJ) delivered on 13 November 2015.
Associate:
Date: 13 November 2015
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