WARNER & WARNER
[2015] FamCAFC 125
•19 June 2015
FAMILY COURT OF AUSTRALIA
| WARNER & WARNER | [2015] FamCAFC 125 |
| FAMILY LAW – COSTS – Costs Certificates – Where the appeal was finalised by consent – Where the Full Court satisfied itself, upon reading the appeal record, that an appealable error had been established – Whether the Full Court had “heard the appeal” for the purposes of granting each of the parties a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Costs certificates granted. |
| Family Law Act 1975 (Cth) B & B (Costs Certificates) (2007) FLC 93-339
Cramer & Davies (1997) 72 ALJR 146 |
| APPELLANT: | Mr Warner |
| RESPONDENT: | Ms Warner |
| FILE NUMBER: | EA | 104 | of | 2013 |
| APPEAL NUMBER: | SYC | 5933 | of | 2011 |
| DATE DELIVERED: | 19 June 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Ainslie-Wallace and Ryan JJ |
| HEARING DATE: | 15 June 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 June 2013 |
| LOWER COURT MNC: | [2013] FamCA 495 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Sansom |
| SOLICITOR FOR THE APPELLANT: | Campbell Paton & Taylor Solicitors |
| SOLICITOR FOR THE RESPONDENT: | KD Holmes Lawyers |
Orders
IT IS ORDERED BY CONSENT:
The appeal be allowed.
The orders of Justice Stevenson made on 26 June 2013 be set aside.
The Application in an Appeal be dismissed.
IT IS ORDERED
The matter be remitted for rehearing before a Judge other than Justice Stevenson.
There be no order as to the costs of the appeal.
The Court grants to the appellant husband a costs certificate pursuant to the provisions 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 him in relation to the appeal.
The Court grants to the respondent wife 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 her 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 rehearing of the application.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Warner & Warner 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 104 of 2013
File Number: SYC 5933 of 2011
Mr Warner
Appellant
And
| Ms Warner |
Respondent
REASONS FOR JUDGMENT
By way of Notice of Appeal filed 24 July 2013, Mr Warner (“the husband”) appeals certain final property settlement orders made on 26 June 2013 by Justice Stevenson. These orders provided for the division of property, assets and superannuation between the husband and Ms Warner (“the wife”). The contention of the husband is that the primary judge mistakenly failed to include an asset valued at $165,417 and a liability of $590,979. The husband contends that the net worth of the parties is $372,027 rather than $797,589 as found.
The parties have interests in a number of companies and trusts. Specifically, the wife is a minority shareholder in a company controlled by the maternal grandfather and is also a discretionary beneficiary of two trusts also controlled by the maternal grandfather. The parties, at various times, accessed funds from these various entities to purchase several properties, a business and property which the husband managed.
The primary judge found that the parties’ net assets, including superannuation, had a value of $797,589 and should be distributed in the ratio of 40 per cent to the husband and 60 per cent to the wife. The matrimonial home was ordered to be sold. It is particularly that order the husband seeks should be set aside and in lieu that he receive 93.8 per cent of the net proceeds.
It is contended there was a material error of fact (De Winter & De Winter (1979) FLC 90-605).
After negotiations between the parties they agree the appeal should be allowed. The orders proposed seek that the orders made by the primary judge be set aside and that the matter be remitted for rehearing. The wife’s Application in an Appeal is to be withdrawn and dismissed, with the intention of the relief sought being pursued at first instance.
It is clear, upon a review of the material contained in the appeal books, that an error was made. Such an error is of course a precondition to the granting of a costs certificate. Further, this is clearly a “Federal Appeal” within the meaning of s 3 of the Act.
Costs Certificates
The husband filed his notice of appeal on 24 July 2013.
Procedural orders were made by the Registrar on 13 November 2013, requiring the parties to file material by certain dates. The appeal books were prepared by the husband and filed within time on 17 February 2014.
The husband was required to file his summary of argument on or before 28 March 2014, and the wife was required to do the same on 28 April 2014. The husband filed his summary of argument on 31 March 2014. The wife filed her summary of argument on 28 May 2014. It is in this summary of argument that the wife concedes the appeal.
The wife filed an Application in an Appeal on 27 May 2015, with an affidavit in support.
The parties’ draft Terms of Settlement ask that each the husband and wife receive costs certificates in respect of the appeal pursuant to ss 9 and 6 respectively of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Act”). The draft Terms of Settlement also ask that both parties receive costs certificates pursuant to s 8 of that Act in respect of the retrial.
In order to grant each party a costs certificate, it is necessary there be demonstrated that this Court has “heard the appeal”. Kirby J, in Cramer & Davies (1997) 72 ALJR 146, preferred a broader construction of the word “heard” as the object of the Act is remedial in nature. This decision has been adopted by this Court in the decisions in B & B (Costs Certificates) (2007) FLC 93-339 and Ball & Ball (Cost Certificates) [2007] FamCA 1252, citing Kirby J’s finding that “a ‘hearing’ means no more than having the matter listed before the court so that it may dispose of the appeal in a public and formal way.”
Each of the parties has complied with the relevant requirements, with respect to filing of outlines of arguments and other procedural orders. The matter was listed before this Court today. Counsel for the husband and the solicitor for the wife have appeared.
In order for a costs certificate to be granted to the husband, being the appellant in this appeal, s 9 of the Act requires that in accordance with s 117 of the Family Law Act 1975 (Cth), each party to an appeal should bear their own costs. In light of the error made, there would be no order as to costs. It is entirely appropriate that costs certificates be awarded.
The necessary statutory preconditions to the grant of a costs certificate to the husband and the wife in respect of the appeal and to both parties in respect of the rehearing have been met.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ainslie-Wallace & Ryan JJ) delivered on 19 June 2015.
Associate:
Date: 19 June 2015
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