SMITH & DINCI
[2012] FamCAFC 55
•16 April 2012
FAMILY COURT OF AUSTRALIA
| SMITH & DINCI | [2012] FamCAFC 55 |
| FAMILY LAW – APPEAL – Where the parties agreed the appeal should be allowed – Where it was not necessary for the court to separately consider whether leave should be given and the appeal allowed – Where it was clear it was reasonable for there to be an appeal – Where the parties had complied with all procedural requirements in the appeal proceedings – Appeal allowed by consent of the parties and costs certificates ordered pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
Ball & Ball (Costs Certificates) [2007] FamCA 1252
B & B (Costs Certificates) (2007) FLC 93-339
| APPELLANT: | Ms Smith |
| RESPONDENT: | Mr Dinci |
| FILE NUMBER: | BRC | 10762 | of | 2008 |
| APPEAL NUMBER: | NA | 75 | of | 2010 |
| DATE DELIVERED: | 16 April 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Strickland & Murphy JJ |
| HEARING DATE: | 16 April 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 June 2010 |
| LOWER COURT MNC: | 2010 FamCA 505 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms McMillan SC |
| SOLICITOR FOR THE APPELLANT: | Murdoch Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Lillas & Loel Lawyers |
Orders
It is ordered by consent:
That leave to appeal be granted.
That the appeal against the orders made on 23 June 2010 by the Honourable Justice Barry be allowed.
The orders 1 to 8 inclusive of the orders of Justice Barry of 23rd June 2010 be set aside.
That the applications for interim relief be remitted to a Registrar for mention for further directions.
That there be no orders for costs in relation to the appeal.
It is further ordered:
The court grants to the appellant a costs certificate pursuant to the provisions of s 9 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 appellant in respect of the costs incurred by the appellant 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 the respondent in relation to the appeal.
The court grants to each of the parties a costs certificate pursuant to the provisions of s 8 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 each of the parties in respect of the costs incurred by the appellant and respondent in relation to the re-hearing of the application.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Smith & Dinci 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 BRISBANE |
Appeal Number: NA 75 of 2010
File Number: BRC 10762 of 2008
| Ms Smith |
Appellant
And
| Mr Dinci |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
May J
The appellant wife filed a notice of appeal on 8 July 2010 against the orders of Justice Barry made 23 June 2010. An amended notice of appeal was filed on 27 June 2011. The orders provided on an interim basis that:
(1)Pursuant to s77 of the Family Law Act the Wife pay the Husband the sum of FIVE HUNDRED DOLLARS ($500) per week, each week, commencing the 30 June 2010 for a period of twenty-six (26) weeks.
It was further ordered that:
(2)The Wife pay to the trust account of the Husband’s solicitors within fourteen (14) days of the date of this Order the sum of ONE HUNDRED AND TWENTY THOUSAND DOLLARS ($120,000) by way of security for costs.
(3)The determination of the treatment of such payment is to be made by the trial Judge.
(4)The Husband’s solicitors are at liberty to use the said payment to pay outstanding legal fees including disbursements together with future legal fees and disbursements of and incidental to the property settlement application.
Orders were also made providing for the sale of a property should the wife fail to pay the moneys.
By the amended notice of appeal, the wife sought that the application for interim orders be remitted for determination by a judge of the Family Court. The grounds of appeal assert a range of errors of fact and law by the trial judge in finding that the respondent husband was in immediate need of financial assistance leading to the making of the spousal maintenance order, and in making an order for security for costs. The appellant wife also filed on
13 May 2011 an application to adduce further evidence, namely an affidavit from a chartered accountant in relation to the value of the wife’s financial interests.
Both parties have complied with all procedural requirements in the appeal. The appellant filed complete appeal books in time, and both parties have filed comprehensive submissions in the appeal.
The respondent husband appears to have been unrepresented for a period in 2011 and compiled his own submissions in the appeal. The husband has since engaged new solicitors and both parties are represented before us today.
On 13 April 2012 the court was advised by the parties’ solicitors that the respondent was willing to consent to the appeal and the interim application subject to the appeal being remitted to a registrar for mention. The court was also advised the parties would be seeking that the Full Court grant costs certificates. The parties have tendered written consent orders to this effect. It is not necessary for us to separately consider whether leave should be given and the appeal allowed. In my view the written submissions of the wife demonstrate that such orders should be made.
As to costs certificates, in the cases of Ball & Ball (Costs Certificates) [2007] FamCA 1252 and B & B (Costs Certificates) (2007) FLC 93-339, the court considered the question of whether orders for costs certificates should be made for appeals in which the parties have agreed the appeal should be allowed.
In this case it is clear that it was reasonable for there to be an appeal. In light of this and as the parties have complied with all procedural requirements, in my opinion costs certificates should be granted.
Strickland J
I agree with the orders proposed by the Presiding Judge and the reasons for those orders.
Murphy J
I also agree and have nothing to add.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 16 April 2012.
Associate:
Date: 16 April 2012
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