Wilhelm and Marla
[2009] FamCAFC 58
•26 March 2009
FAMILY COURT OF AUSTRALIA
| WILHELM & MARLA | [2009] FamCAFC 58 |
| FAMILY LAW - APPEAL – Procedure – Appeal against orders of a Federal Magistrate – Where the crux of the appeal involves the exercise of discretion per se and the extent to which the exercise of discretion was vitiated by alleged errors of fact – Appropriate that the appeal be heard before a bench of three judges – Request revocation of the delegation of the hearing of the appeal to a single judge – Costs certificates granted. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 Section 10 |
De Winter v De Winter (1979) FLC ¶90-605
| APPELLANT: | MR WILHELM |
| RESPONDENT: | MS MARLA |
| APPEAL NUMBER: | EA | 82 | of | 2008 |
| FILE NUMBER: | PAC | 2361 | of | 2007 |
| DATE DELIVERED: | 26 March 2009 |
| PLACE DELIVERED: | Parramatta |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 26 March 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 18 June 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 632 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Michael Brown |
| SOLICITOR FOR THE APPELLANT: | C/- Michael Brown Browns The Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Anne Rees |
| SOLICITOR FOR THE RESPONDENT: | C/- Neil Jamieson Champion Legal |
Orders
That the appeal is adjourned for hearing before a Bench of three judges in the Appeal Division in Sydney on Thursday 2 April 2009.
That pursuant to Section 10(2) of the Federal Proceedings (Costs) Act 1981 the Court grants to each party a Costs Certificate with respect to the hearing scheduled for this day on the basis that the Court is unable to continue with the proceedings on this day.
Request the Chief Justice to revoke the delegation of the hearing of the appeal to a single judge on or before 10 am on 2 April 2009.
IT IS NOTED that publication of this judgment under the pseudonym Wilhelm & Marla is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
Appeal No: EA 82 of 2008
File No: PAC 2361 of 2007
| MR WILHELM |
Appellant
And
| MS MARLA |
Respondent
REASONS FOR JUDGMENT
On 19 February 2009 this appeal was set down for hearing before a single judge. That was done in good faith on the part of the Court and both the parties. On 13 March 2009, in accordance with directions previously made, the Appeal Books were filed.
Included in the Appeal Books pursuant to the previous directions of the Court was an Amended Notice of Appeal. On 25 March 2009 in preparation for hearing the appeal this morning, the Court read the Appeal Books. In the course of so doing, the Court necessarily had regard to the Amended Notice of Appeal and to the written outlines of argument filed on behalf of each of the parties.
With respect to Counsel for the appellant, whose opening grounds in the Amended Notice of Appeal assert to errors of law in the approach adopted by the learned Federal Magistrate, the crux of the appeal as articulated in the Amended Notice of Appeal appears to involve the exercise of discretion per se and the extent to which the exercise of discretion was vitiated by alleged errors of fact. As the High Court’s decision in De Winter v De Winter (1979) FLC ¶90-605 makes clear, allegations of factual error, if successful, do not automatically or necessarily vitiate the exercise of discretion.
Having read the comprehensive outlines filed on behalf of each of the parties by their counsel, the Court became concerned that for the appeal to be heard by a bench of one judge raised a real prospect of injustice to one of the parties. That arose essentially on the basis that the decision of the learned Federal Magistrate involved the exercise of what has been described as an undoubtedly broad discretion. The principles governing appeals against the exercise of discretion are well known and, objectively, impose upon an appellant a substantial onus. It is undesirable that the parties, whatever the outcome of the appeal, be put in the position where one judge is applying what is ultimately a subjective mind to the result of a trial which was itself significantly referable to the ultimately subjective exercise of a single mind.
The broader interests of justice would be better served by these parties having the benefit of three judges hear and evaluate, on the one hand, the appellant’s challenges, on the other, the respondent’s resistance to those challenges. Fairly, Counsel for the parties have either impliedly embraced the Court’s approach or raised no opposition to it. In those circumstances the orders which the Court has made have been made and cost certificates issued. The Court accepts that the issue of cost certificates in this case involves a liberal interpretation of s 10(2) of the Act. In so doing it is not without precedent and has at least been tacitly approved by Kirby J in an unreported decision in the High Court to which reference has been made in recent times.
For those reasons, the orders are as the Court has ordered.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman.
Associate:
Date: 8 April 2009
0
2