Smith and Smith
[2008] FamCAFC 9
•23 January 2008
FAMILY COURT OF AUSTRALIA
| SMITH & SMITH | [2008] FamCAFC 9 |
| FAMILY LAW - APPEAL FROM DECISION OF FEDERAL MAGISTRATE – failure of Learned Federal Magistrate to give adequate reasons for decision – question whether consideration given to relevant principles for making parenting orders – appeal allowed - by consent order of Learned Federal Magistrate set aside – remit matter to Federal Magistrates Court for an urgent hearing – costs certificate granted to both parties |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 |
| Wilkes and Wilkes (1981) FLC 91-060 |
| APPELLANT: | Mr Smith |
| RESPONDENT: | Ms Smith |
| FILE NUMBER: | ADC | 3585 | of | 2007 |
| APPEAL NUMBER: | SA | 98 | of | 2007 |
| DATE DELIVERED: | 23 January 2008 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 23 January 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 2 October 2007 |
| LOWER COURT MNC: | Not available |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Whittle |
| SOLICITOR FOR THE APPELLANT: | Caldicott & Co |
| COUNSEL FOR THE RESPONDENT: | Mr McQuade |
| SOLICITOR FOR THE RESPONDENT: | David Fidler |
Orders
That the appeal be allowed.
That paragraphs 1, 2 and 3 of the orders made by the Learned Federal Magistrate on 2 October 2007 be set aside.
That the Application for Final Orders and the Application for Interim Orders filed by the respondent wife on 29 June 2007, and the Response to Final Orders and the Response to Interim Orders filed by the appellant husband on 13 August 2007, insofar as they relate to children’s issues, be remitted to the Federal Magistrates Court for rehearing on an urgent basis.
That the Court grants to the appellant husband a costs certificate pursuant to the provisions of Section 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorize a payment under the Act to the appellant husband in respect of the costs incurred by the appellant husband in relation to the appeal.
That the Court grants to the respondent wife a costs certificate pursuant to the provisions of Section 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorize a payment under the Act to the respondent wife in respect of the costs incurred by the respondent wife in relation to the appeal.
That the appeal be removed from the active pending cases list.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Smith and Smith.
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT |
Appeal Number: SA 98 of 2007
File Number: ADC 3585 of 2007
| MR SMITH |
Appellant
And
| MS SMITH |
Respondent
EX TEMPORE REASONS
This is an appeal against the orders made by Lindsay FM on 2 October 2007, being final parenting orders. The appeal first came before me on 7 December 2007 and I adjourned it to today on the basis of a request being made of the Learned Federal Magistrate for the provision of his reasons for judgment and to obtain a copy of the transcript of the hearing on 2 October 2007.
The transcript has been obtained however this Court has been advised by the Federal Magistrates Court, “…that FM Lindsay did not give oral reasons at the hearing on 2 October 2007 in relation to this matter. He simply made his orders following a brief hearing.” This is confirmed by the transcript. The implication from that is that there will not be any reasons provided by the Learned Federal Magistrate.
Today the matter has been called on again, and I have advised counsel of the information received from the Federal Magistrates Court. As a result the respondent wife, through her counsel has indicated that the respondent concedes the appeal and invites me to make an order setting aside the orders of the Learned Federal Magistrate and remitting the matter for hearing on an urgent basis to the Learned Federal Magistrate. The appellant husband agrees that those orders should be made. I propose to finalise the matter in this way despite what was said by the Full Court in WILKES and WILKES (1981) FLC 91-060. The primary ground of appeal was the absence of reasons.
Both parties seek orders pursuant to the Federal Proceedings (Costs) Act 1981 on the basis that the appeal will be allowed on a question of law.
I am satisfied that in making the orders proposed there is a question of law involved. At the very least as I indicated to Mr Whittle, one of the grounds of the appeal is that the Learned Federal Magistrate failed to provide adequate reasons and as a result it is not apparent that his Honour considered the relevant principles and the relevant sections of the Family Law Act 1975 which prescribe what has to be addressed in making parenting orders. Thus I am prepared to grant a costs certificate to both parties.
I certify that the preceding
5 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland
the 23rd day of January 2008.
……………………………………….
Associate
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