Zebic and Barron

[2016] FamCAFC 215

FAMILY COURT OF AUSTRALIA

ZEBIC & BARRON [2016] FamCAFC 215

FAMILY LAW – APPEAL – COSTS – Where the primary judge failed to afford the parties procedural fairness – Appeal allowed by consent.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for costs – Where the appeal was allowed by consent – Where the appellant submits that the appeal was wholly successful and that an order for costs should be made – Where the appellant’s grounds of appeal did not particularise the alleged lack of procedural fairness – Where it is appropriate that the parties bear their own costs of the appeal.

Family Law Act 1975 (Cth) s 117

Barron & Zebic (No 2) [2016] FCCA 1695

APPELLANT: Ms Zebic

RESPONDENT: Mr Barron

FILE NUMBER: NCC 2955 of 2010

APPEAL NUMBER: EA 116 of 2016

DATE DELIVERED: 22 September 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 22 September 2016

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 7 July 2016

LOWER COURT MNC: [2016] FCCA 1695

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Saw

SOLICITOR FOR THE APPELLANT: Paula Tyrie Law Practice

SOLICITOR FOR THE RESPONDENT: Flintoff Lawyers

Orders

1. The appeal is allowed.

2. Orders 1 and 2 made by Judge Scarlett on 7 July 2016 are set aside.

3. The issue of the costs of the parenting proceedings between the parties is remitted to the Federal Circuit Court for re-hearing.

4. Each party is to bear their own costs of and incidental to the appeal. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zebic & Barron has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 116 of 2016
File Number: NCC 2955 of 2010

Ms Zebic

Appellant

And

Mr Barron

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This was a directions hearing in relation to an appeal from costs orders made by Judge Scarlett on 7 July 2016.  As between the parties, they are agreed that the appeal should be allowed, the orders set aside and the costs issue remitted for re-hearing. 

2. The costs issue was before Judge Scarlett on 8 September 2015.  At that time, his Honour had made final parenting orders but not delivered reasons.  The issue of costs was directed to be heard in chambers with parties to file submissions.  The time for filing any submission elapsed before the reasons for the final parenting orders were delivered.  That led to an extension of time.  However, ultimately, his Honour delivered reasons without the benefit of the parties’ submissions. In those circumstances, there is a lack of procedural fairness and I will make the orders sought by the parties. 

3. An issue has arisen as to costs, with the appellant seeking an order for costs of the appeal on the basis that, in effect, the appeal was wholly successful.  As appears from Judge Scarlett’s costs orders, neither of the parties is in a strong financial position (see Barron & Zebic (No 2) [2016] FCCA 1695 at [21]).

4. However, importantly, the particular lack of procedural fairness referred to in paragraph 2 was not identified in the grounds of appeal.  The first ground of appeal simply is that the trial judge denied the appellant procedural fairness prior to making his decision.

5. The precise nature of the procedural unfairness to which I have referred was made plain in an affidavit of the appellant’s solicitor that was sworn on 26 August 2016 and forwarded to the counsel for the respondent last week.  It was when she had the opportunity to consider the contents of that affidavit and obtain instructions that led her yesterday to propose to the appellant that the appeal should be allowed by consent. 

6. Taking all those matters into account, and being relevant matters under s 117 of the Family Law Act 1975 (Cth), I am of the view that the appropriate order is that each party should pay their own costs of the appeal. Accordingly, I make the orders set out at the commencement of my reasons for judgment.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 22 September 2016.

Associate: 

Date:  4 November 2016