Zabini and Zabini (No 2)
[2013] FamCAFC 111
FAMILY COURT OF AUSTRALIA
| ZABINI & ZABINI (NO. 2) | [2013] FamCAFC 111 |
| FAMILY LAW – APPEAL – COSTS – where the parties agreed to the disposition of the appeal – where the parties requested that the Full Court make parenting orders by consent – whether those orders are in the best interests of the children – where parenting orders made by consent – where the parties each seek certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – where the challenges the subject of the Notice of Appeal raise questions of law – where there is merit in those challenges – where it was appropriate for the parties to agree to the disposition of the appeal – costs certificates ordered. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| B & B (Costs Certificates) (2007) FLC 93-339 Cramer v Davies (1997) 72 ALJR 146 |
| APPELLANT: | Ms Zabini |
| RESPONDENT: | Mr Zabini |
| INDEPENDENT CHILDREN'S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 4364 | of | 2009 |
| APPEAL NUMBER: | EA | 48 | of | 2013 |
| DATE DELIVERED: | 31 July 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Strickland & Murphy JJ |
| HEARING DATE: | 11 July 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 5 April 2013 |
| LOWER COURT MNC: | [2013] FMCAfam 298 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Kearney SC |
| SOLICITOR FOR THE APPELLANT: | John R. Quinn & Co. Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Gould |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Karagiannis |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
Orders
IT IS ORDERED BY CONSENT:
That the Appeal be allowed.
That the Orders of Judge Scarlett made on 5 April 2013 be set aside.
That the father and the mother have equal shared parental responsibility for the children T born 2000 and M born 2003.
That the children and each of them live with the father and the mother as follows:
4.1 Weekly during school term
4.1.1Week 1
With the mother commencing at 9.00 am on Monday and concluding at 9.00 am the following Monday, with the children to first live with the mother pursuant to this Order on 22 July 2013 and thereafter from each alternate Monday; and,
4.1.2Week 2
With the father commencing at 9.00 am on Monday and concluding at 9.00 am the following Monday, with the children to live with the father from 15 July 2013 and each alternate Monday thereafter;
and from Term 3 of 2013 these arrangements shall recommence following each school holiday period with the children living in the week in which school resumes for the new school term with the person with whom they were not to live in accordance with Order 4.2 during the immediately preceding school holiday period;
4.2School holidays
For half of each of the autumn, winter and spring school holidays in each year and failing agreement the children shall live with the mother in the first half of each school holiday period and with the father for the second half of each school holiday period, such that in the current school holiday periods the children shall commence to live with the mother at 9.00 am on 6 July 2013 and for the purpose of this Order the school holiday periods are defined to commence after school on the last day of the school term and to conclude at 9.00 am on the Monday immediately prior to or upon which school recommences for the next term.
4.3Christmas/January school holidays
4.3.1with the father for the first half of the Christmas/January school holiday period commencing in the year 2013 and each uneven numbered year thereafter;
4.3.2with the mother for the second half of the Christmas/January school holiday period commencing in 2013 and each uneven numbered year thereafter;
4.3.3with the mother for the first half of the Christmas/January school holiday period commencing in 2014 and each even numbered year thereafter; and
4.3.4with the father for the second half of the Christmas/January school holiday period commencing in 2014 and each even numbered year thereafter;
and for the purpose of this Order the school holiday periods are defined to commence after school on the last day of the school term and to conclude at 9.00 am on the Monday immediately prior to or upon which school recommences in the next year.
4.4Father’s Day
With the father from 9.00 am until 7.00 pm on Father’s Day in each year if the children would not otherwise be spending time with the father on that day but for this Order.
4.5Mother’s Day
With the mother from 9.00 am until 7.00 pm on Mother’s Day in each year if the children would not otherwise be spending time with the mother on that day but for this Order.
4.6Children’s birthdays
With the parent with whom they are not otherwise living on such day, for a period of three (3) hours on each of the children’s birthdays if on a school day (save for a Monday) and for a period of six (6) hours if on a weekend if such day should fall on a day when the children would not otherwise be spending time with that parent pursuant to these orders.
4.7 During the Christmas holiday period as follows
Notwithstanding any other Order herein, the children shall live with:
4.7.1the mother from 9.00 am Christmas Eve until 9.00 am Christmas Day in the year 2013 and each alternate year thereafter;
4.7.2with the father from 9.00 am Christmas Day until 9.00 am Boxing Day in the year 2013 and each alternate year thereafter;
4.7.3with the father from 9.00 am Christmas Eve until 9.00 am Christmas Day in the year 2014 and each alternate year thereafter; and,
4.7.4with the mother from 9.00 am Christmas Day until 9.00 am Boxing Day in the year 2014 and each alternate year thereafter.
4.8At all such other reasonable times as may be the subject of prior agreement between the parties in writing.
Implementation of orders for the time spent with the children
When the children are in attendance at school on a day on which they are to change residence, the parent with whom the children have been residing at that time shall deliver them to school at the conclusion of their time and in the event that they are not in attendance at school on such day, then the parent with whom the children have been residing at that time shall deliver them to the residence of the other parent at the conclusion of their time.
That each party must inform the other in writing of any change to his or her residence no less than seven (7) days prior to such change occurring and of any change to his or her contact telephone number within seven (7) days of such change occurring and of the new address and telephone number in each instance.
Overseas Travel
That, subject to each party giving four (4) weeks written notice to the other, both parties are permitted to take the children out of Australia for holidays for a period of up to four (4) weeks or such other period as mutually agreed by the parties in writing provided that they give to the other party:
7.1a copy of the children’s travel itinerary;
7.2a copy of the details of the return airline bookings for each of the children
including details of airlines and flight numbers; and
7.3a telephone number upon which the children can be contacted whilst they are out of Australia.
Family Therapy
That each party do all acts and things necessary so as to continue to cause the children and if required themselves to attend family therapy with a family therapist agreed upon by the parties in writing and at their cost. Each party shall give adequate notice of all such counselling appointments to the other to enable the other party to attend if so required by the family therapist. The parties are granted leave to provide such family therapist with a copy of these Orders, the Family Reports of Dr. C as filed in the proceedings and any other relevant document or report reasonably requested by the said family therapist.
General Orders
That each party must permit and do all things necessary to facilitate the children making telephone calls to and receiving telephone calls from the other party whilst the children are in the care of the other party pursuant to these orders.
That each party must ensure that the children have privacy during telephone conversations with the other party and must not place the telephone on loud speaker.
That each party must notify the other as soon as is reasonably practicable of any accident or emergency involving either or both of the children which involves medical treatment or hospitalisation whilst the children are in their care pursuant to these orders.
That the parties are restrained from changing the children’s usual place of residence to any place outside the Sydney Metropolitan area.
That both parties are to ensure that the children attend all extra-curricular activities in which they are currently enrolled including training, games and presentations whilst the children are in their care pursuant to these orders and neither party is to enrol the children or either of them in any further extra-curricular activity without first obtaining the approval of the other party.
That the parties be and hereby are restrained from criticising or denigrating each other in the presence or hearing of the children T and M or either of them or from permitting any third person to do so.
That the parties be and hereby are restrained from using any form of physical discipline on either of the children T or M or causing or permitting any other person to do so.
That save as otherwise provided herein, all outstanding application for parenting orders before this Court are withdrawn and dismissed.
That there be no order as to costs.
IT IS FURTHER ORDERED:
The appellant mother be granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (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 her in relation to the appeal.
The respondent father be granted a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (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 him in relation to the appeal.
IT IS NOTED:
The intention of these Orders is to resolve all parenting proceedings between the parties and:
· each of the father and the mother will file a Notice of Discontinuance if called upon to do so in respect of any proceedings which remain before the Federal Circuit Court; and,
· each warrants to the other that no order as to costs is to be sought by them in respect of the parenting proceedings before the Federal Circuit Court which resulted in the Order of 5 April 2013.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zabini & Zabini 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 48 of 2013
File Number: SYC 4364 of 2009
| Ms Zabini |
Appellant
And
| Mr Zabini |
Respondent
And
| Legal Aid New South Wales |
Independent Children's Lawyer
REASONS FOR JUDGMENT
On 2 May 2013, the mother filed a Notice of Appeal in respect of parenting orders made on 5 April 2013 by Federal Magistrate Scarlett (as his Honour then was). Pursuant to directions made by the Appeals Registrar, the mother prepared and filed appeal books and filed submissions in support of the appeal. The father did not file written submissions, however, he did file an Application to Adduce Further Evidence and a supporting Affidavit on 1 July 2013.
The mother’s appeal was listed for hearing on 11 July 2013. As will be obvious, the appeal was expedited, the essential reason for which arose from the fact that his Honour’s orders altered long-standing care arrangements for the two children of the relationship.
The day prior to the hearing of the appeal, notification was received by the Appeals Registrar via a jointly signed communication by the legal practitioners for each of the parties that the parties were in agreement as to the disposition of the appeal and new parenting orders that would be made consequent upon the appeal being allowed. It was also indicated that each of the parties would seek Costs Certificates pursuant to s 9 and s 6 respectively of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”).
Disposition of the Appeal
In accordance with the agreement of the parties, orders will be made by consent allowing the appeal and setting aside the orders made by Scarlett FM.
Consequent upon the appeal being allowed, the parties seek that we make parenting orders by consent in terms of the minutes signed by each of the parties and handed up at the hearing of the appeal. In broad compass, those orders provide for the parties to have equal shared parental responsibility and for the children (currently aged 12 years and 10 years) to spend “week about” time with each of their parents. In addition, school holidays are to be divided equally between the parties and provision is made for time on special days. It ought also be noted that the orders provide that the parties will each do all things necessary so as to continue “to cause the children and if required themselves” to attend family therapy with a family therapist agreed upon by the parties.
The Independent Children’s Lawyer who represented the children at the trial before Scarlett FM appeared at the hearing as a courtesy to the court and indicated that she neither supported nor opposed the orders.
By reference to the material before this Court, we are satisfied that the orders which each of the parties would have this Court make are in the best interests of the two children. We will order in accordance with the terms of the minutes save for the alteration to some procedural and machinery aspects of them canvassed with counsel during the course of the short hearing.
In addition, the proposed orders provide that “there be no order as to costs.” Nothing to which we have been taken compels a conclusion that this Court ought exercise the discretion in s 117(2) of the Family Law Act 1975 (Cth) (“the Act”) so as to displace the rule provided for in s 117(1) of the Act. By reference to the evidence before us, we are satisfied that an order should be made that the parties should each bear their own costs in accordance with s 117(1) of the Act as they have agreed.
Costs Certificates
Mr Kearney, counsel for the mother, referred us to the decision of B & B (Costs Certificates) (2007) FLC 93-339. That decision, in turn, refers to the judgment of Kirby J in Cramer v Davies (1997) 72 ALJR 146.
Each of those decisions enumerated three matters which, by reference to the Costs Act, must be satisfied before a Costs Certificate pursuant to either, s 6 or s 9 of that Act is issued to, respectively, a respondent or an appellant:
· The existence of a Federal Appeal;
· That the appeal has succeeded on a question of law; and,
· That the court concerned should have heard the appeal.
It is submitted that two of those three conditions are plainly met here. We agree. The appeal is clearly a “Federal Appeal” (see paragraph (j) of the definition of “Federal Appeal” in s 3(1) of the Costs Act). Despite the truncated nature of the proceedings before us, we agree also that we have “heard the appeal”. We place particular reliance in that respect upon Kirby J’s broad interpretation of that expression in Cramer that the requisite hearing was “no more than having the matter listed before the courts so that it may dispose of the appeal in a public and formal way”. The hearing here went further than the description offered by his Honour with argument advanced by counsel for each of the parties.
The third requisite condition – that the appeal which was allowed by consent nevertheless “succeed[ed] on a question of law” – requires consideration.
The wife’s Notice of Appeal contains seven grounds. Broadly, the challenge to his Honour’s orders fall into two categories. It is contended that, despite reasons extending to some 60 pages, his Honour gave insufficient reasons for the making of the orders, particularly given that the ultimate orders changed long-standing care arrangements. That challenge is related to the second broad challenge which is encompassed by assertions that his Honour “failed to properly, if at all, determine” issues specified in the ground including, in particular, issues relating to family violence. The same criticism is directed towards the trial judge’s treatment of the issue of parental capacity (see, for example, grounds 4 and 7).
There can be little doubt that the issue of family violence was live between the parties at the trial and that each of the parties (and the Independent Children's Lawyer) made a number of central contentions with respect to that issue and sought specific findings in respect thereof.
It is contended that whilst his Honour “noted” the legislative provisions relating to family violence and “noted” the submissions made by each of the parties in respect of that important issue, no findings (or alternatively, insufficient findings) were made in respect of those matters. Again, the same contention is made in respect of, specifically, parental capacity.
Counsel for the respondent, concedes that those challenges to his Honour’s orders have merit and pointed to the fact that his client, too, sought specific findings at the trial in circumstances where assertions of family violence were the subject of a significant challenge by him.
We are persuaded both as to the merits of the appeal and as to the appropriateness of the parties agreeing that the appeal should be allowed.
We have been taken to nothing which suggests that the Federal Magistrate was led into error by any actions or inactions on the part of any of the parties, either themselves or through their legal practitioners. We are well satisfied that the appeal succeeds on a question of law within the meaning of, respectively, s 6(1) and s 9(1)(a) of the Costs Act.
Section 9 of the Costs Act imposes an additional requirement if an appellant is to receive a certificate. In addition to the matters earlier referred to, an appellant must satisfy the Court that, “in accordance with s 117 of the Act, each party to the appeal bears his or her own costs”.
As we have already said, the parties are agreed that there should be “no order as to costs” and we agree.
Accordingly, we are of the view that preconditions essential to the issue of certificates pursuant to ss 6 and 9 respectively of the Costs Act are met in this case and we will order accordingly.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Strickland and Murphy JJ) delivered on 31 July 2013.
Associate:
Date: 31 July 2013
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