SKIVINGTON & SKIVINGTON - [2019] FamCAFC 36

FAMILY COURT OF AUSTRALIA

SKIVINGTON & SKIVINGTON

[2019] FamCAFC 36

FAMILY LAW – APPEAL – PROCEDURAL – Where the Federal Circuit Court Judge dismissed the parties' initiating application and response for failure to prosecute the matter – Where the judge failed to comply with the requirements of Rule 13.12 of the Federal Circuit Court Rules 2001 (Cth) – Where the appeal allowed – Where costs certificates awarded.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth) s 3(1)
Federal Circuit Court Rules 2001(Cth) r 13.2

B & B(Costs Certificates) (2007) FLC 93-339; [2007] FamCA 1177
Cramer v Davies (1997) 72 ALJR 146

APPELLANT:

Ms Skivington

RESPONDENT:

Mr Skivington

FILE NUMBER:

PAC

2601

2017

APPEAL NUMBER:

2019

DATE DELIVERED:

11 March 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

26 February 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

21 November 2018

LOWER COURT MNC:

[2018] FCCA 3952

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Ms Catton

SOLICITOR FOR THE RESPONDENT:

Ms Makdo

Orders of 26 February 2019

The appeal against the orders of Judge Obradovic made on 21 November 2018 is allowed and the orders of 21 November 2018 are set aside.
The initiating application filed on 26 May 2017 and the response filed on

17 August 2017 are remitted to the Federal Circuit Court for re-hearing by a judge other than Judge Obradovic.
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 her in relation to the appeal.
The Court grants to the respondent 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 in respect of the costs incurred by him in relation to the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Skivington & Skivington has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 2 of 2019
File Number: PAC 2601 of 2017

Ms Skivington

Appellant

and

Mr Skivington

Respondent

REASONS FOR JUDGMENT

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.

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Details

AGLC: SKIVINGTON & SKIVINGTON [2019] FamCAFC 36
Case: [2019] FamCAFC 36
Decision Date: 11 March 2019

CaseChat Overview and Summary

This appeal concerns the dismissal of a parenting and property application by Judge Obradovic of the Federal Circuit Court. Ms Skivington appealed the dismissal, arguing that the dismissal was improper because the proceedings had not been dormant, and the parties had been actively participating in mediation to resolve the issues in dispute. Mr Skivington conceded the appeal at the directions hearing before the Full Court, leading to the dismissal of the primary judge's orders, the remitting of the matter to the Federal Circuit Court for re-hearing, and the awarding of costs certificates to both parties.

The key issue in the appeal was whether the primary judge was correct to dismiss the proceedings for want of prosecution. The appeal was determined on the basis that the judge had failed to follow the mandatory steps set out in Rule 13.12 of the Federal Circuit Court Rules 2001 (Cth), which provides that proceedings may be dismissed for want of prosecution only if certain conditions are met, including that there is no future listing of the matter and that the parties have not taken steps to advance the proceedings. It was argued that the parties had taken steps to advance the proceedings, including attending mediation, which was still ongoing at the time of the dismissal. The Full Court found that the appeal had been heard, and that the appeal had succeeded on a question of law, thereby satisfying the criteria for the award of a costs certificate. The Full Court therefore set aside the primary judge's orders, remitted the matter to the Federal Circuit Court for re-hearing, and granted a costs certificate to each party in respect of the appeal.

Orders