Watson & Watson

Case [2013] FamCAFC 25

FAMILY COURT OF AUSTRALIA

WATSON & WATSON [2013] FamCAFC 25
FAMILY LAW – APPEAL – Application and scope of discretionary rule not to hear an application by a party in breach of orders – Where the Federal Magistrate dismissed the husband’s s 79A application on the basis that the husband was in contempt – Where the husband’s contempt was in relation to costs orders in earlier proceedings concerning child support – Whether the husband’s contempt was in the “same proceeding” or the “same cause” as s 79A application –Whether the Court had a discretion not to hear the s 79A application when contempt occurred in relation to separate proceedings – Error of law – Appeal allowed and proceedings to be remitted for re-hearing – Costs certificate awarded.
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Fahmi and Fahmi (1995) FLC 92-637
Hadkinson v Hadkinson [1952] P. 285
Kiefer & Kiefer [2008] FamCAFC 197
Short v Short (1973) 7 SASR 1
Sparkes & Eberle [2000] FamCA 2146
Young v Jackman (1986) 7 NSWLR 97; 11 Fam LR 331
APPELLANT: Mr Watson
FIRST RESPONDENT: Ms Watson
SECOND RESPONDENT:  Child Support Registrar
FILE NUMBER: BRC 8994 of 2007
APPEAL NUMBER: NA 105 of 2011
DATE DELIVERED: 7 March 2013
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Strickland, Murphy and Kent JJ
HEARING DATE: 21 February 2013
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 30 November 2011
LOWER COURT MNC: [2011] FMCAfam 1526

REPRESENTATION

FOR THE APPELLANT: Mr Watson in person
COUNSEL FOR THE FIRST RESPONDENT: Mr Fleetwood
SOLICITOR FOR THE FIRST RESPONDENT: Melvin & Co.
FOR THE SECOND RESPONDENT: No appearance

Orders

  1. The appeal be allowed.

  2. The orders of Federal Magistrate Coates made on 30 November 2011 be set aside.

  3. The husband’s initiating application filed 12 October 2010 be remitted for hearing by a Federal Magistrate in the Brisbane Registry of the Federal Magistrates Court, other than Federal Magistrate Coates.

  4. The Court grants to the appellant husband a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the appellant husband for the disbursements, being out of pocket expenses which would have been recoverable had he been legally represented, incurred by him in relation to the appeal against the orders of Federal Magistrate Coates made on 30 November 2011.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Watson & Watson 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 105  of 2011
File Number: BRC 8994  of 2007

Mr Watson  

Appellant

And

Ms Watson  

Respondent

REASONS FOR JUDGMENT

Strickland and Kent JJ

Introduction

  1. By Amended Notice of Appeal filed on…

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AGLC
WATSON & WATSON [2013] FamCAFC 25
Case
[2013] FamCAFC 25
Decision Date

CaseChat Overview and Summary

In the matter of Watson & Watson, the husband appealed against orders made by Federal Magistrate Coates on 30 November 2011. The husband's initiating application, filed on 12 October 2010, related to family law matters. The Federal Court was called upon to determine whether the orders made by the Magistrate were appropriate and to consider the husband’s appeal on the grounds provided.

The primary legal issue before the Court was whether the Federal Magistrate had correctly exercised her discretion in making the orders in question. The Court needed to review the process and the decision-making of the Magistrate to ensure that it adhered to the relevant legal principles and statutory requirements. Specifically, the Court had to assess if the orders were just and equitable, considering the circumstances and evidence presented in the family law proceedings.

The Court found that the Federal Magistrate had exercised her discretion in a manner that was not in accordance with the applicable legal principles. As a result, the appeal was allowed, and the orders made by the Magistrate on 30 November 2011 were set aside. The Court remitted the husband's initiating application for hearing by another Federal Magistrate in the Brisbane Registry of the Federal Magistrates Court, excluding Federal Magistrate Coates. Additionally, the Court granted the husband a costs certificate, acknowledging his out-of-pocket expenses related to the appeal. The certificate enabled the husband to seek reimbursement for these expenses from the Attorney-General, pursuant to the Federal Proceedings (Costs) Act 1981.

Orders

Orders of the court

1.

The appeal be allowed.

2.

The orders of Federal Magistrate Coates made on 30 November 2011 be set aside.

3.

The husband’s initiating application filed 12 October 2010 be remitted for hearing by a Federal Magistrate in the Brisbane Registry of the Federal Magistrates Court, other than Federal Magistrate Coates.

4.

The Court grants to the appellant husband a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the appellant husband for the disbursements, being out of pocket expenses which would have been recoverable had he been legally represented, incurred by him in relation to the appeal against the orders of Federal Magistrate Coates made on 30 November 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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