Cooper and Kingsley

[2014] FamCAFC 205

FAMILY COURT OF AUSTRALIA

COOPER & KINGSLEY [2014] FamCAFC 205

FAMILY LAW – COSTS – Where the appeal was conceded – Where the parties applied for costs certificates pursuant to sections 6 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth) – Whether the appeal succeeded on an error of law – Where the primary judge failed to consider sections 72 and 75(2) of the Family Law Act 1975 (Cth) and where the reasons were inadequate – Error of law established– Costs certificates ordered.

Family Law Act 1975 (Cth): ss 72, 75
Federal Proceedings (Costs) Act 1981 (Cth): ss 6, 9

B & B (Costs Certificates) (2007) FLC 93-339

APPELLANT: Mr Cooper

RESPONDENT: Ms Kingsley

FILE NUMBER: NCC 3131 of 2011

APPEAL NUMBER: EA 60 of 2013

ORDERS MADE: 16 October 2014

DATE DELIVERED: 22 October 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie Wallace, Ryan & Watts JJ

HEARING DATE: 16 October 2014

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 13 May 2013

LOWER COURT MNC: [2013] FCCA 277

REPRESENTATION

COUNSEL FOR THE APPELLANT: Greg Levick

SOLICITOR FOR THE APPELLANT: Attwaters

COUNSEL FOR THE RESPONDENT: Michael Bateman

SOLICITOR FOR THE RESPONDENT: Hunter Family Law Centre

Orders made 16 october 2014

1. That the Court grants to the appellant a costs certificate pursuant to the provisions 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 him in relation to the appeal.

2. That 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 her in relation to the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cooper & Kingsley 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 60 of 2013
File Number: NCC 3131 of 2011

Mr Cooper

Appellant

And

Ms Kingsley

First Respondent

And

Child Support Registrar

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By Amended Notice of Appeal filed on 16 October 2013 Mr Cooper (“the father”) appealed orders made by Judge Myers on 13 May 2013.  The orders discharged, as at 13 May 2013, spousal maintenance and child maintenance orders made on 16 January 1989.  An amount of $35,000 which his Honour found was held by the Child Support Agency (“CSA”) was ordered to be paid in reduction of child maintenance and spousal maintenance arrears.  Upon payment all outstanding arrears were reduced to nil.  Only $25,000 was held by the CSA and one interpretation of the orders is that in addition to the money held by the CSA, the father was required to pay a further $10,000.

2. So as to put the orders in context, it needs to be understood that it was the father’s application to discharge the 1989 orders as at 19 February 1998; being the date upon which he commenced to receive a disability support pension.

3. There were two respondents to the appeal, Ms Kingsley (“the mother”) for whom the child support and spousal maintenance orders were payable and, because the orders were registered for collection with the CSA, also the Child Support Registrar.  The Child Support Registrar was given permission to withdraw from the appeal.

4. Not long after the hearing before us commenced, at the behest of the mother and father, the matter was stood down.  When the hearing resumed, we were advised that they were agreed that the appeal should be allowed and his Honour’s orders set aside.  With the concurrence of the parties we then made the orders set out below:

   1.The appellant be granted leave to adduce further evidence in the appeal in accordance with the document headed “Agreed Facts” and marked Exhibit A.

   2.The appeal be allowed.

   3.The orders made by Judge Myers on 13 May 2014 be set aside. It is noted in connection with this order that this appeal was conceded by the respondent mother.

   4.The order for spousal maintenance made in the Local Court at Maitland on 16 January 1989 be discharged with effect from 19 February 1998.

   5.Any arrears pursuant to the spousal maintenance order be discharged.

   6.Pursuant to s 66W(2)(b) of the Family Law Act 1975 (Cth) the order made in the Local Court … on 16 January 1989 for child maintenance be varied so as to fix the arrears owing with respect to that order in the sum of $15,000.

   7.The appellant and the respondent mother forthwith do all acts and things and sign all documents necessary to direct Messrs Attwaters to pay from their controlled money account in the parties’ joint names the sum of $15,000 to the respondent mother which shall discharge those arrears referred to in order 6 and the balance to the applicant.

   8.The respondent’s response to an application in a case filed 6 June 2013 be dismissed.

   9.There be no order as to costs.

   …

   IT IS NOTED:

   1.Terms of Settlement between the appellant father and respondent mother be Exhibit B.

5. After the appeal was allowed, the parties applied for costs certificates in relation to the appeal.  Orders to that effect were made.  We said we would publish our reasons later.  These are those reasons.

6. Before orders pursuant to either s 6 or s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) may be made, three matters must be established. Namely:

   ·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.

   B & B (Costs Certificates) (2007) FLC 93-339.

7. In addition, an appellant must establish that the appellant will bear his or her own costs.

8. Each matter is established.

9. In relation to the second of those matters, the grounds of appeal on which the father relied asserted numerous errors by the primary judge. Broadly stated, these included the failure to take into account relevant considerations and the failure to make necessary findings. His Honour wrongly proceeded on the basis that the case was predominantly concerned with arrears of child maintenance when it was overwhelmingly concerned with arrears of spousal maintenance. As a consequence of his Honour misunderstanding the nature of the case he failed to consider ss 72 and 75(2) of the Family Law Act 1975 (Cth) (“the Act”) and the reasons which his Honour gave were inadequate.

10. In addition, at the commencement of the hearing before us, counsel for the father indicated that leave would be sought to add an additional ground.  Namely, that in making orders in favour of the mother for an amount greater than she sought but not first informing the parties of his intention to do so, the primary judge denied procedural fairness to the father.

11. Notwithstanding carefully crafted written submissions by counsel for the mother, we understood from counsel for the mother it was conceded, correctly in our view, that his Honour’s reasons were inadequate, and that as a consequence of his failure to address critical evidence necessary findings were not made and he failed to address the spousal maintenance component of the case in the manner identified in the grounds for appeal.  These are all errors of law and, in this case, each matter alone, let alone collectively, made the appeal irresistible. 

12. Of course, whether or not an order that a certificate issue should be made is discretionary.  In our view, the parties’ respective cases presented to his Honour were well articulated and formulated.  There is nothing about the manner in which the proceedings were undertaken before his Honour which would weigh against their having certificates for the appeal.

13. Orders were thus made as sought.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 22 October 2014.

Associate:       

Date:              22 October 2014