Tadgell & Hahn & Anor - [2013] FamCAFC 1

FAMILY COURT OF AUSTRALIA

TADGELL & HAHN AND ANOR

[2013] FamCAFC 1

FAMILY LAW – APPEAL – NOTICE OF APPEAL – LEAVE TO APPEAL – where the Federal Magistrate dismissed the wife’s application to join the husband’s mother as a party to the property settlement proceedings – where the wife submits that the order made is a final order and thus leave to appeal is not required – where the husband and his mother say otherwise – where the question is whether the order made is “an interlocutory decree” rather than a final order – where the usual test is whether the order finally determines the rights of the parties in the principal case pending between them – where the authorities have determined that in applying the test the court is to have regard to the legal rather than practical effect of the judgment – where the legal effect of the judgment here is not to finally determine the rights of the parties – where leave to appeal is required – where the wife must demonstrate that there has been an error of principle and/or the fact that the decision appealed from caused her a substantial injustice – where the wife claims that she and the husband have an equitable interest in a property owned by the husband’s mother – where the Federal Magistrate found that there was no detriment suffered by the wife and her husband relying on representations made by the husband’s mother – where it is apparent that the Federal Magistrate gave inadequate consideration to significant aspects of the detriment that the wife was alleging – leave to appeal granted.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – where there is merit in three of the four grounds of appeal – where the orders made by the Federal Magistrate should be set aside – where the question becomes whether the matter be remitted for rehearing or the discretion be re-exercised – matter adjourned for submissions on the question of remission or rehearing.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the wife sought that in the event that leave was granted and the appeal was successful that the parties each bear their own costs and a costs certificate issue pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – where the husband and his mother joined in that submission – where the appeal succeeded on a question of law – costs certificates issued.

Family Law Act 1975 (Cth) s 94AA
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9
Family Law Rules 2004 (Cth) r 22.04
Family Law Regulations 1984 (Cth) reg 15A

Bergman & Bergman (2009) FLC 93-395
Bienstein v Bienstein (2003) 195 ALR 225
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352
Carr v Finance Corporation of Australia Limited (No. 1) (1981) 147 CLR 246
Commonwealth Bank of Australia v ACN 000 247 601 Pty Limited (in liq) (formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416
Constantinidis v Robinson [2008] FMCA 1374
Donis & Ors v Donis [2007] VSCA 89
Re Luck (2003) 203 ALR 1
Rutherford and Rutherford (1991) FLC 92-255

APPELLANT:

Ms Tadgell

FIRST RESPONDENT:

Mr Hahn

SECOND RESPONDENT:

Ms S

FILE NUMBER:

MLC

7358

2009

APPEAL NUMBER:

SOA

2012

DATE DELIVERED:

11 January 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

2 August 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

31 January 2012

LOWER COURT MNC:

[2012] FMCAfam 74

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Moisidis

SOLICITOR FOR THE APPELLANT:	Meier Denison Guymer Pty Ltd
COUNSEL FOR THE FIRST RESPONDENT:	Mr Crozier-Durham

SOLICITOR FOR THE FIRST RESPONDENT:

Brian McGrath

COUNSEL FOR THE SECOND RESPONDENT:

Dr Sharpe

SOLICITOR FOR THE SECOND RESPONDENT:

Brian McGrath

Orders

Leave to appeal be granted.
The appeal be allowed.
The orders made by the Federal Magistrate on 31 January 2012 be set aside.
The court grants to the wife a costs certificate pursuant to the provisions of section 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 wife in respect of the costs incurred by the wife in relation to the appeal.
The court grants to the husband a costs certificate pursuant to the provisions of section 6 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 husband in respect of the costs incurred by the husband in relation to the appeal.
The court grants to the husband’s mother a costs certificate pursuant to the provisions of section 6 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 husband’s mother in respect of the costs incurred by the husband’s mother in relation to the appeal.
Further consideration of the Notice of Appeal be adjourned to 2:00pm on Thursday 17 January 2013 in Melbourne for the purpose of receiving submissions from the parties as to whether the matter should be remitted to the Federal Magistrates Court or whether this Court should re-exercise the discretion and if it is the former, to consider the question of costs certificates to the parties for such rehearing.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 14 of 2012
File Number: MLC 7358 of 2009

Ms Tadgell

Appellant

And

Mr Hahn

First Respondent

And

Ms S

Second Respondent

REASONS FOR JUDGMENT

Introduction

Ms Tadgell (“the wife”) seeks leave to appeal against the order made by

Phipps FM on 31 January 2012 dismissing the wife’s application to join Ms S (“the husband’s mother”) and amend her initiating application. Mr Hahn

(“the husband”) and his mother oppose the application.
Despite the wife applying for leave, at the hearing, the wife’s counsel submitted that leave was not required because the order was a final order. I will address this submission later in these reasons.
In the event that leave to appeal is granted the wife appeals against the said order, and seeks that it be set aside and that the husband’s mother be joined as the second respondent to the proceedings.
Although the husband’s mother was not a party to the proceedings and the Federal Magistrate dismissed the application to join her, as a “person who is directly affected by the orders sought” or “who is likely to be interested in maintaining the order”, pursuant to r 22.04 of the Family Law Rules 2004 (Cth) she must be made a respondent to the application for leave to appeal and to the appeal itself if leave is granted. As such, the husband’s mother participated in the hearing of the application; she was represented by counsel and she filed a written summary of argument.

Background

The parties married in 1979, separated in 2007 and divorced in 2009.
The parties have three children, X born in 1979, Y born in 1991 and Z born in 1984.
The parties first lived in L in a property they owned. The wife owned and managed a business and the husband had his own business.
In 1984 the parties sold their L property and moved to Melbourne, purchasing a property in S. It was the husband’s evidence that the net proceeds of sale from the L property were about $75,000 from which $10,000 was used to purchase the S property and the remaining $65,000 was placed into an interest-bearing account and subsequently lent to his new business partnership. It was the wife’s evidence that at the time she believed most of the proceeds were used towards the purchase of the S property and only later found out much of it went into the husband’s new business partnership.
The husband resigned from the partnership in 1985. It was the husband’s evidence that he received nothing other than the repayment of the $65,000 loan, which was repaid in full on or about 31 December 1985. The husband then commenced his own business.
The Federal Magistrate found it was unclear on the evidence whether the parties lived in the S property. It was the wife’s evidence that the property was rented so that the parties did not have to default on the mortgage. The property was subsequently sold.
During 1985 the parties moved into a property at M, which at that time was owned by the husband’s grandmother. It was the husband’s evidence that the property was purchased by his grandparents in 1956 and that they both lived in the house until the death of his grandfather in 1978, with his grandmother continuing to live there until 1983 when she moved in with the husband’s mother. Upon the grandmother’s death in 1987 the property passed to the husband’s mother and the parties remained living there until they separated.
The husband’s mother owns and lives in a property in T and has two other children, A and B.
On 6 November 2010 the wife filed an initiating application seeking orders for property settlement. The wife then filed an application in a case on 11 May 2011 seeking to join the husband’s mother. That application was heard by the Federal Magistrate on 15 July 2011 and his Honour made orders and delivered his reasons for judgment on 31 January 2012.

Reasons for judgment delivered 31 January 2012

The Federal Magistrate commenced his reasons for judgment by detailing the application before him. To summarise, the wife alleged the parties had an equitable interest in the husband’s mother’s property at M and was applying to join her as a party to the proceedings. Both the husband and his mother opposed the application on the ground that the wife had no reasonable prospects of success in any claim against the husband’s mother.
His Honour found the relevant test was the same as the test in a summary judgment application provided in s 17A of the Federal Magistrates Act 1999 (Cth), namely whether the wife had a reasonable prospect of success in her claim against the husband’s mother.
The Federal Magistrate then outlined the wife’s evidence in relation to the M property. In summary, the wife said the property was in a very bad state when they first moved in, that she was upset living there and started to look at other properties, and she placed the S property on the market. It was the wife’s evidence that the husband’s mother did not want the family to lose the house and told the parties “do what you like to the house” and that she would leave it to them in her will. The wife was dissatisfied with this as she did not want to repair and maintain the property without it belonging to the parties. After a further conversation with the husband’s mother, in which she said her T properties would be left to her other son and daughter and that the M property was theirs, the wife says that the parties believed the property was theirs and carried out various renovations and improvements. It was the wife’s evidence that the parties made periodic gratuitous payments to the husband’s mother, which at the time of separation were $850 per month, and that they paid all the costs in relation to the property, such as land tax, insurances, rates and utilities. The wife also gave evidence of subsequent conversations she had with the husband’s mother where she referred to the property belonging to the parties.
His Honour then outlined the husband’s mother’s evidence in relation to the M property. To summarise, it was her evidence that, since she inherited the property following her mother’s death in 1987, her son and his family had rented it on the condition they paid rent and outgoings on the property. She asserted that she paid the land tax from her own funds and that it was almost equal to the amount of rent she received. It was her evidence that the property was in a reasonable and liveable condition and that she did not want her son to stay there as she could rent the property to another tenant for substantially more or sell the property, but that she allowed her son to stay there for a reduced rent out of compassion because he had three young children. When the husband suggested some works to be done on the property, the husband’s mother said she told him any works would be done at his expense and would not affect any rent paid. She denied making statements to the parties that the M property was theirs, but rather claimed it was her intention to leave the property to the husband and divide the rest of her estate amongst her three children.
Lastly, the Federal Magistrate outlined the husband’s evidence and noted that the husband’s description of the renovations was largely consistent with that of the wife. It was the husband’s evidence that the intention of the parties and his mother had always been that the parties’ occupation of the M property was temporary. The husband also gave evidence that in 1988 the parties purchased land at M for $112,000 in the name of the wife, intending to build a house on it. That land was used as security for the husband’s business overdraft of $20,000 and it was the husband’s evidence that he made payments on the mortgage. The land was sold by the bank in 1992 leaving a residual liability of approximately $25,000, which the husband negotiated to repay at a rate of $500 per month. The husband gave evidence that in 1989 the parties paid a deposit of $27,000 to purchase land at M for $270,000, but that they were unable to settle the contract and the deposit was forfeited to the vendor. Furthermore, it was the husband’s evidence that around 1990 he found himself personally liable to pay a number of expenses as a result of misconduct by another person with whom the husband shared office premises, and in 1992 a number of persons issued proceedings against the husband. Ultimately, the husband negotiated payment arrangements individually with various persons to avoid having to declare bankruptcy.
The Federal Magistrate went on to discuss Friar & Friar [2009] FamCA 295, where Fowler J summarily dismissed the wife’s claim against her sister-in-law that she and her husband be declared the sole owners of a property registered in the name of the her husband and his sister. Fowler J accepted the submission by counsel for the husband’s sister that the test was whether the wife’s application was “doomed to fail”. However, the Federal Magistrate noted that that case was decided prior to the enactment of s 17A of the Federal Magistrates Act 1999 (Cth) and a similar provision in the Family Law Act 1975 (Cth) (“the Act”), and that s 17A made it clear that “for a summary judgment application to succeed the claim need not be doomed to fail”. The Federal Magistrate then set out a lengthy extract from Fowler J’s reasons in which

his Honour summarised the law in relation to constructive trusts and other possible equitable remedies.
The Federal Magistrate subsequently determined to take into account the husband’s uncontested evidence as to the M land purchased in the wife’s name, the unsuccessful attempt to purchase another block of land at M, and the husband’s difficult financial position in the early 1990s. On this evidence his Honour concluded that there was “common ground between the parties that when they moved into the house they did not intend to remain permanently but intended to purchase their own property”.
The Federal Magistrate considered that, assuming the representations by the husband’s mother were made, to establish a constructive trust or equitable remedy the wife must still show that she and the husband suffered detriment relying on those representations. His Honour then proceeded on the basis that the detriment the wife alleged was that she and the husband ceased looking for another property. However, the Federal Magistrate found that that was not correct, the undisputed evidence being that the parties made two unsuccessful attempts to secure their own home. His Honour then concluded as follows:
43.The wife puts forward no evidence of the parties’ ability to purchase their own home after 1991. In the face of the husband's undisputed evidence about the attempts and financial loss and his own undisputed financial difficulties, in order to show that she has a reasonable prospect of success in a claim against [Ms S] the wife needs to show that the parties had a reasonable prospect of establishing that they could have purchased another home. The detriment the wife relies upon is that she says the parties ceased looking for their own home. But if they had no ability to obtain their own home then there is no detriment.
44.In the absence of the two failed attempts to purchase another home it may have been sufficient for the wife to assert that she and the husband did not attempt to do so. Given that there were two failed attempts and the obvious financial difficulty, to show a reasonable prospect of success the wife does need to put forward some evidence of an ability to purchase another home. She says she carried out some part-time work but says she was principally engaged in caring for the children and the home. She does not say she was capable of obtaining sufficient funds to purchase a home herself. The objective evidence of two failed attempts to obtain a home and each party’s finances leads to the conclusion that while both husband and wife state they wished to obtain their own home, financially they could not do so.
45.The payment of amounts of money to [Ms S], the payment of rates and taxes, assuming the parties paid the land tax, and the carrying out of renovations and repairs does not lead to the conclusion that the wife has a reasonable prospect of successfully establishing that those matters alone caused detriment to the husband and wife such that equity should intervene.

Leave to appeal

The wife’s submission is that leave to appeal is not required here. The husband and his mother say otherwise.
Pursuant to s 94AA of the Act “a prescribed decree of the Federal Magistrates Court” requires leave to appeal. Regulation 15A of the Family Law Regulations 1984 (Cth) provides that a “prescribed decree is an interlocutory decree”.
Thus, the question is whether the order made here is “an interlocutory decree” rather than a final order.
This issue has been discussed in many cases including in the High Court of Australia: see Re Luck (2003) 203 ALR 1; Bienstein v Bienstein (2003) 195 ALR 225, at 230; and Carr v Finance Corporation of Australia Limited (No. 1) (1981) 147 CLR 246, at 248 and 256.
The usual test is whether the order finally determines the rights of the parties in the principal case pending between them. If it does then it is a final order, and if it does not it is an interlocutory order.
Importantly, those same authorities have determined that in applying the test the court is to have regard to the legal rather than the practical effect of the judgment.
Here, in my view, the legal effect of the judgment is not to finally determine the rights of the parties. The principal parties are the husband and the wife, the proceedings comprise disputed applications for property settlement, and the order under consideration does not deal directly with the rights in contest in that action; the Federal Magistrate did not determine the substantive rights of the parties with respect to property.
Certainly, the legal effect of the decision is to preclude at this stage the husband’s mother’s property, or any interest in it, from inclusion in the pool of assets as between the husband and the wife, but it does not prevent a subsequent application being made or proceedings being commenced in the State courts. Undoubtedly there are practical difficulties in undertaking either of these two courses, but that is not the test.

Accordingly, leave to appeal is required.
I am comforted in the conclusion that I have reached by the fact that in Bergman & Bergman (2009) FLC 93-395, where the husband sought leave to appeal against orders refusing to grant him leave to join third parties to the property proceedings, the Full Court made no suggestion that the order was a final order not requiring leave.
Turning then to the leave application, there is no dispute that to succeed the wife must demonstrate that there has been an error of principle and/or the fact that the decision appealed from caused her a substantial injustice (Rutherford and Rutherford (1991) FLC 92-255).
The facts relied on in support of the application for leave to appeal as comprised in the Further Amended Notice of Appeal filed on 13 July 2012 are as follows:
1.The proposed grounds of appeal are arguable and have merit.
2.The current orders for summary dismissal and refusal to add the second respondent as a party to the action, work a substantial injustice against the Appellant in that
a.the orders impact on the bulk of the proposed property pool of the marriage.
b.the orders have the effect of excluding a substantial property from the Court’s consideration of what constitutes the matrimonial property pool.
c.the Appellant will be prevented from making a claim to a substantial freehold property.
d.the orders have the practical effect of finally determining the entitlements of the Appellant to an interest in the property situated at [M].
e.The orders prevent the Appellant from litigating her claim that there was a constructive trust and or raising an equitable estoppel between herself and the first respondent on the one hand and the second respondent on the other.
I observe that one of the amendments to this Notice was to delete the facts pleaded that indicate his Honour “erred in principle”. However, I assume that by paragraph 1 above it is intended that the proposed grounds of appeal establish the error of principle.
As to the claim of “substantial injustice” I consider that the facts relied on do not in fact support the claim. They are superficial, and say nothing more than that because the application was refused the wife is unable to pursue her claim. That is the case whenever an application is dismissed, and thus more must be shown. In this case, what is necessary is to dig deeper and demonstrate that the findings create substantial injustice, and that leads to a consideration of the proposed grounds of appeal.
The proposed grounds of appeal as set out in the Further Amended Notice of Appeal are as follows:
1.His Honour erred in law in failing to find that the appellant had reasonable prospects for success in establishing a constructive trust or an equitable estoppel.
2.His Honour was wrong in law to determine that detriment was to be measured only by the parties ability to purchase their own home.
3.His Honour failed to give appropriate weight to the detriment suffered by the appellant.
4.His Honour erred in fact by rejecting that the husband and the wife ceased looking for another house.
During the hearing the wife’s counsel indicated that Grounds 1 and 2 were effectively the same in the sense that Ground 2 identifies the specific error of law the subject of Ground 1.
The central complaint of the wife is that his Honour proceeded on the basis that the only possible detriment to be considered was that relying on the representations of the husband’s mother the wife and her husband ceased looking for another property.
His Honour found first that the husband and the wife did not cease looking for a house because of the undisputed evidence that they made two unsuccessful attempts to secure their own home resulting in financial loss. Secondly,

his Honour found that for that to be a relevant detriment the wife needed to demonstrate that “the parties had a reasonable prospect of establishing that they could have purchased another home”, yet the “objective evidence” led to the conclusion that “financially they could not do so”.
As to the first issue, by Ground 4, the wife challenges his Honour’s rejection of the claim that they ceased looking for a home. It is difficult to understand this challenge though, given the uncontested evidence of the two failed attempts to secure another home. In his written submission the wife’s counsel appears to skate over this and instead focuses on the issue of the parties’ financial ability to purchase another home, in other words, what I have described as the second finding by his Honour. In this regard his submission is that although there was evidence of financial difficulties in 1991/1992 there was no evidence concerning any financial difficulty thereafter. However, this submission misses the point. His Honour proceeded, correctly in my view, on the basis of the “objective evidence” of the two failed attempts to obtain another home, and the lack of evidence from the wife as to the parties’ ability to purchase their home after 1991.
There is no error by the Federal Magistrate here.
I consider though that there is merit in the other grounds of appeal. His Honour was plainly wrong in suggesting that the only relevant detriment the wife said that she suffered is that she and her husband ceased looking for another property. A perusal of the transcript of the hearing does not bear that out, and that was conceded during the hearing by the counsel for the husband. It was not conceded by the counsel for the husband’s mother, but I do not accept her interpretation of the transcript.
In presenting the wife’s case on the detriment suffered, the wife’s counsel took his Honour to the wife’s affidavit material where she deposed to the financial contributions to renovations undertaken on the property, the maintenance and improvement of the property over a period of 22 years, the gratuitous payments to the husband’s mother, and the payment of rates, taxes and insurance, and it was his Honour who raised the issue of ceasing to look for another property, although the wife’s counsel then agreed that that was a detriment suffered by the wife.
Thus, it was incumbent on the Federal Magistrate to address all aspects of the detriment alleged by the wife. His Honour belatedly appeared to recognise this, and after determining that because the parties “had no ability to obtain their own home then there is no detriment”, he concluded his reasons with paragraph 45 set out above at [21].
It is readily apparent that this was an inadequate consideration of significant aspects of the detriment that the wife was alleging, and in my view provides a basis for finding merit in the proposed Grounds 1, 2 and 3.
For example, in Donis & Ors v Donis [2007] VSCA 89, the Court of Appeal (Maxwell ACJ, Nettle and Ashley JJA) held at paragraph 20 that:
… The object of the exercise is to do equity and for that purpose “detriment” is no narrow or technical concept. It need not consist of expenditure of money or other quantifiable financial disadvantage so long as it is something substantial. The requirement must be approached as part of a broad enquiry as to whether departure from a promise would be unconscionable in all the circumstances.
Further, and of significance in the case at bar, the Court of Appeal said this at paragraph 53:
… In the first place, the detriment constituted of spending $40,000 in effecting improvements to the promised property was not just the $40,000 outlaid but the fact that it was not outlaid in acquiring or improving a property in which the respondent would have had an interest. Whereas if the promise had not been made it may be supposed that the $40,000 would have gone to the acquisition of a home of the respondent’s choice and in which she would have had a half interest, in fact it was spent on a property which she will not now ever own. …
That case also establishes that it is irrelevant that the party seeking to promote the presence of an equity on the basis of financial contributions may have in turn received a benefit. Nettle JA (with whom Maxwell ACJ and Ashley JA agreed) said this at paragraphs 54 and 56:
… I regard the so-called benefit of “rent-free” accommodation as substantially irrelevant. …
…
… It is the product of a discrete equitable principle that the conduct of a promisor in engaging a promisee to change his or her position to the promisee’s detriment binds the promisor to make good the promisee’s expectation. The detrimental reliance which supports the estoppel is, therefore, not to be conceived of as consideration in any sense. It is not a case of quid pro quo and even less one which requires correspondence as between the financial value of whatever may move each way. …
It must also be remembered that his Honour’s task was not to find that the wife’s claim to an equitable interest or other equitable remedy was established or not, but to determine whether that claim has a reasonable prospect of success.
The authorities establish that there will be “reasonable prospects of success if there is evidence which may be reasonably believed” so as to enable a party “to succeed at the final hearing. Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects. Unless only one conclusion can be said to be reasonable, the discretion” to summarily dismiss the application, “cannot be enlivened”. (Constantinidis v Robinson [2008] FMCA 1374, paragraph 10; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352, paragraph 45; Commonwealth Bank of Australia v ACN 000 247 601 Pty Limited (in liq) (formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416, paragraphs 30-33).
Here, his Honour failed to properly address the alleged detriment suffered in order to determine whether the wife had a reasonable chance of success in establishing a constructive trust or the application of another equitable remedy. Thus, I find that the wife has demonstrated that there has been an error of principle and/or that the decision appealed from caused her a substantial injustice, and leave to appeal should be granted.

The appeal

In their written and oral submissions the parties addressed the proposed grounds of appeal in the event that leave to appeal was not required, and the hearing before me was conducted on that basis as well. I have found that leave to appeal is required, and in the context of considering the application for leave I have addressed the proposed grounds of appeal and I have found merit in Grounds 1, 2 and 3.
Thus I propose to not only grant leave to appeal but to also allow the appeal itself and set aside the orders made by the Federal Magistrate.
The question then becomes whether I should remit the matter for rehearing to the Federal Magistrates Court or re-exercise the discretion. I am inclined to do the latter, but first I need to seek submissions from the parties as to this issue.

Costs

At the conclusion of the hearing I received submissions from the parties as to the question of costs.
In the event that leave was granted and the appeal was successful the wife sought that each party bear their own costs but that a costs certificate issue pursuant to the Federal Proceedings (Costs) Act1981 (Cth) (“the Costs Act”). Both the husband and the husband’s mother joined in that submission.
Accordingly, given that the appeal has succeeded on a question of law, and each party is to bear their own costs, I consider it appropriate for costs certificates to issue pursuant to the Costs Act. However, whether there are to be costs certificates for a rehearing in the Federal Magistrates Court will obviously depend upon whether the proceedings are remitted or not. In that regard, to repeat, I am seeking submissions from the parties, and subject to the outcome I will revisit the issue of cost certificates for any rehearing.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on

11 January 2013.

Associate:

Date: 11 January 2013