Yelner & Yelner (Costs Certificates) - [2013] FamCAFC 18

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Yelner & Yelner (Costs Certificates)

Details

AGLC: YELNER & YELNER (COSTS CERTIFICATES) [2013] FamCAFC 18
Case: [2013] FamCAFC 18
Decision Date: 22 February 2013

CaseChat Overview and Summary

The appeal before the Court was brought by Yelner, the appellant, against Yelner, the respondent. The primary dispute arose from the Federal Circuit Court’s handling of parenting orders concerning the relocation of their children. The appellant contested the Federal Magistrate's decision regarding the legislative pathway for making such orders under the Family Law Act 1975. The Court of Appeal was tasked with determining whether the lower court had correctly applied the relevant legislation and if the orders made were appropriate.

The legal issues central to the appeal were whether the Federal Magistrate had erred in applying the legislative framework for parenting orders and if the appeal's outcome warranted the granting of costs certificates. Specifically, the Court needed to ascertain if the appeal's allowance by consent, without oral argument, still qualified for costs certificates under the Federal Proceedings (Costs) Act 1981. The Court had to balance the principles established in Cramer v Davies (1997) 72 ALJR 146 regarding the formal disposition of appeals.

The Court of Appeal found that the Federal Magistrate had indeed erred in the application of the legislative pathway, thus allowing the appeal. Regarding the costs certificates, the Court considered that the appeal was effectively disposed of in a public and formal way, as it was allowed by consent and the consent orders were made in open court. This satisfied the criteria for granting costs certificates as per the principles outlined by Kirby J in Cramer v Davies. Consequently, the Court granted the costs certificates, acknowledging that the appeal succeeded on a question of law and was disposed of formally, despite being resolved by consent.

The Court's final orders included the allowance of the appeal and the remitting of the application for parenting orders concerning the relocation of the children for rehearing by another Federal Magistrate. Additionally, the costs certificates were granted to the appellant, Yelner.

Orders