Yelner & Yelner (Costs Certificates)
[2013] FamCAFC 18
•22 February 2013
FAMILY COURT OF AUSTRALIA
| YELNER & YELNER (COSTS CERTIFICATES) | [2013] FamCAFC 18 |
| FAMILY LAW – APPEAL – CHILDREN – RELOCATION – Where the Federal Magistrate erred in the application of the legislative pathway for making of parenting orders under the Act – appeal allowed and applications remitted for rehearing. FAMILY LAW – APPEAL – COSTS CERTIFICATES – Costs certificates granted where an appeal is allowed by consent without oral argument in relation to its merits – Certificates granted on the basis that this was a “federal appeal” which “succeeded on a question of law” and the consent orders were made in open court such that the appeal was “disposed of in a public and formal way”, therefore satisfying the principles set out by Kirby J in Cramer v Davies (1997) 72 ALJR 146. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
B & B (Costs Certificates) (2007) FLC 93-339
Ball & Ball (Costs Certificates) [2007] FamCA 1252
Cramer v Davies (1997) 72 ALJR 146
Sayer & Radcliffe & Anor [2012] FamCAFC 209
| APPELLANT: | Ms Yelner |
| RESPONDENT: | Mr Yelner |
| FILE NUMBER: | DNC 159 of 2011 |
| APPEAL NUMBER: | NA 46 of 2012 |
| DATE DELIVERED: | 22 February 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Murphy & Kent JJ |
| HEARING DATE: | 22 February 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 22 March 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 259 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Thiele |
| SOLICITOR FOR THE APPELLANT: | NT Legal Aid Commission |
| COUNSEL FOR THE RESPONDENT: | Ms Farmer |
| SOLICITOR FOR THE RESPONDENT: | Withnalls Lawyers |
ORDERS BY CONSENT
The appeal be allowed.
Until the further hearing of the matter or earlier as agreed between the parties, orders 3 to 8 of the orders of 22 March 2012 as amended on 23 March 2012 by Federal Magistrate Turner will operate as interim orders.
The matter be remitted for rehearing by a Federal Magistrate other than Federal Magistrate Turner.
There be no order as to costs in relation to the appeal and the application in an appeal filed 31 May 2012.
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:
It is requested that the Federal Magistrates Court expedite the rehearing of the proceedings as that Court deems appropriate.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Yelner & Yelner (Costs Certificates) 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 46 of 2012
File Number: DNC 159 of 2011
| Ms Yelner |
Appellant
And
| Mr Yelner |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
May J
On 16 July 2012 the mother filed a notice of appeal against final parenting orders made by Federal Magistrate Turner on 22 March 2012, in relation to the parties’ son born September 2006. The mother had been granted an extension of time on 10 July 2012 to file her notice of appeal.
The orders of the Federal Magistrate, the subject of the appeal, provide for the parties to have equal shared parental responsibility, for the child to live with the mother and spend time with the father. The orders also refused an application of the mother to relocate the child from Darwin to Cairns.
By her notice of appeal, the mother seeks that the appeal be allowed, the orders of the Federal Magistrate be set aside and the matter be remitted for rehearing before a different Federal Magistrate.
Both parties complied with procedural orders in the preparation of the appeal. The appellant mother filed appeal books, an outline of argument and list of authorities in time. On 31 January 2013 the mother also filed an application in an appeal to adduce further evidence.
On 31 January 2013, the respondent father filed an outline of argument and list of authorities. In that outline it became apparent that the father concedes the appeal and agrees with the appellant that the matter ought be remitted for rehearing by a different Federal Magistrate. We were subsequently advised by the Registrar that the parties agreed to orders allowing the appeal, setting the orders aside and remitting the matter for rehearing. A signed minute of consent orders was received on 19 February 2013.
It remained necessary however, to hear the parties on the issue of costs certificates, which cannot be the subject of consent. In the cases of Ball & Ball (Costs Certificates) [2007] FamCA 1252 and B & B (Costs Certificates) (2007) FLC 93-339 the Court considered whether orders for costs certificates should be made where an appeal is to be allowed by consent.
In Cramer v Davies (1997) 72 ALJR 146, Kirby J identified the following three preconditions for the grant of a costs certificate under s 6 of the Federal Proceedings (Costs) Act 1981(Cth): the existence of a “Federal appeal”; the necessity to establish that the appeal has succeeded on a question of law; and the requirement that the Court concerned should have heard the appeal. Kirby J adopted a broad interpretation of the third requirement, being that the matter be listed before a court so it may be disposed of in a formal and public way.
Mr Thiele appears for the mother before us in Brisbane, and Ms Farmer for the father by telephone link from Darwin. I am satisfied of the first and third conditions.
As to the second, I am also satisfied that the appeal is to be allowed on the basis of an error of law. The father concedes the appeal on the basis that the mother’s grounds 1 and 2 must succeed, having regard to the recent Full Court of Sayer & Radcliffe & Anor [2012] FamCAFC 209. In that case, the appellant mother had also sought to relocate, from Darwin to Queensland. The appeal was allowed on the basis that the Federal Magistrate failed to apply and correctly follow the applicable legislation for parenting cases where relocation is one of the issues (at paragraph 101). In fairness to the Federal Magistrate I note that the two cases were heard by the same Federal Magistrate, the present case being heard in March and the other being heard in April last year.
The mother’s ground 1 is that the Federal Magistrate erred by failing to provide adequate reasons or otherwise misdirected herself in relation to the pathways and principles to be applied in relocation matters. Ground 2 is that the Federal Magistrate erred by determining the parenting issues on the basis of whether the mother should be permitted to relocate, rather than considering and assessing the parties’ proposals.
Having regard to the written submissions of the parties, and the Federal Magistrate’s reasons for judgment, it is apparent that her Honour did err in the manner asserted by the mother and conceded by the father. The appeal should be allowed, and the orders set aside and the mater remitted as the parties agree.
Having satisfied the three conditions, in my opinion it is appropriate to grant the parties costs certificates, in both the appeal and the rehearing, pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
The respondent father also sought in his outline of argument that the rehearing be expedited subject to arrangements of the Federal Magistrates Court. As it is now nearly twelve months since the original hearing, I would respectfully request that that Court expedite the rehearing as it deems appropriate.
The costs of the application for an extension of time were adjourned to the Full Court on 10 July 2012. The respondent father conceded that the appropriate order in respect of that application was no order as to costs. I would make that order.
Murphy J
I agree with her Honour Justice May and I have nothing to add.
Kent J
I agree with her Honour Justice May and I have nothing to add.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Murphy & Kent JJ) delivered on 22 February 2013.
Associate:
Date: 22 February 2013
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