ECTON & ESAREY

[2015] FamCAFC 84

FAMILY COURT OF AUSTRALIA

ECTON & ESAREY [2015] FamCAFC 84

FAMILY LAW – APPEAL – NOTICE OF APPEAL – Where the appeal was called on as a result of concerns about the reasons for judgment of the trial judge – Where the respondent conceded the ground of appeal advanced which challenged the adequacy of the reasons of the trial judge – Where the appellant urges the court to re-exercise the discretion – Where it is not appropriate for the discretion to be re-exercised in light of the updating evidence to be presented – Appeal allowed – Matter remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the trial judge.

FAMILY LAW – APPEAL – COSTS CERTIFICATES – Where the appellant and the respondent each seek costs certificates pursuant to the Federal Proceedings Costs Act 1981 (Cth) – Where the law is settled as to whether certificates can be granted where an appeal is allowed without proceeding to a full hearing – Where this matter qualifies for the issuing of certificates – Certificates granted as sought.

Family Law Act 1975 (Cth)

Federal Proceedings Costs Act 1981 (Cth) – ss 6, 8 and 9

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

Cramer v Davies (1997) 72 ALJR 114

APPELLANT: Mr Ecton

RESPONDENT: Ms Esarey

INDEPENDENT CHILDREN’S LAWYER: Amanda Jane Ryder

FILE NUMBER: ADC 3763 of 2014

APPEAL NUMBER: SOA 17 of 2015

DATE DELIVERED: 7 April 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 7 April 2014

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 19 February 2015

LOWER COURT MNC: [2015] FCCA 327

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr McQuade

SOLICITOR FOR THE APPELLANT: Hamilton Legal Lawyers

COUNSEL FOR THE RESPONDENT: Ms Horvat

SOLICITOR FOR THE RESPONDENT: Andrew Hill & Co

INDEPENDENT CHILDREN’S LAWYER Legal Services Commission of South Australia

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Hemsley

Orders

1. The appeal be allowed.

2. Paragraphs 1 and 2 of the orders made on 19 February 2015 be set aside.

3. The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Simpson.

4. The Court grants to the appellant father 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 father in respect of the costs incurred by him in relation to the appeal.

5. The Court grants to the respondent mother 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 mother in respect of the costs incurred by her in relation to the appeal.

6. 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 them in relation to the rehearing.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number:  SOA 17 of 2015
File Number:  ADC 3763 of 2014

Mr Ecton

Appellant

And

Ms Esarey

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. This appeal was listed for mention this morning as a result of my concerns about the reasons for judgment of the trial judge.

2. Having raised my concerns, there was discussion between bench and bar, but counsel for the respondent ultimately indicated that the appeal was still opposed.  However, the trial judge had an application listed before him this morning as well seeking a stay of the operation of his orders, and it was thought appropriate to adjourn the appeal to this afternoon to await the outcome of that stay application, because depending upon that outcome it would become clearer when the appeal needed to be listed.

3. The matter has now been called on this afternoon and I have been informed that the stay application was heard by the trial judge this morning, but surprisingly his Honour reserved his judgment.

4. That said, Ms Horvat for the respondent now concedes Ground 11 of the Notice of Appeal filed by the father on 10 March 2015, which ground challenges the adequacy of the reasons of the trial judge.  On this basis the appeal will be allowed, and in normal circumstances that would lead to a remission of the matter to the Federal Circuit Court of Australia for rehearing by a judge other than the trial judge.  However, Mr McQuade for the appellant has urged me to not remit but to re-exercise the discretion.  I have heard submissions about that and I have determined that it is not appropriate for me to re-exercise the discretion.  As I understand it, and as has been confirmed by Ms Horvat, if I were to re-exercise the discretion there would be significant evidence presented which would include updating evidence, and may even include expert evidence in relation to the respondent’s health.  Given that there would be that extensive updating evidence, and given that there would be some controversy about that evidence, in my view, it would be inappropriate for me to re-exercise the discretion.  Thus, I propose to remit the matter for rehearing.

5. On that basis the appellant and the respondent each seek costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth), not only for the appeal, but also for the rehearing.

6. In relation to those applications there is settled law as to whether certificates can be granted where an appeal is allowed without proceeding to a full hearing, as is the case here (see Cramer v Davies (1997) 72 ALJR 114; B and B (Costs Certificates) (2007) FLC 93-339). Indeed I am satisfied that this matter qualifies for the issuing of certificates. It would be inappropriate to make an order for costs, the appeal is conceded on a question of law, and it can be said that the appeal has been heard within the meaning of the legislation, given that it was listed today, albeit for mention.

7. It became apparent when addressing the orders to be set aside that if orders 1 and 2 made on 19 February 2015 were simply set aside there would then be no orders in place pending the rehearing addressing where the child would live, and what time the child would spend with each of the parties.

8. Sensibly, counsel sought that the matter be stood down to see if agreement could be reached as to what should happen in that regard pending the rehearing.  I am pleased to record that the parties have now reached agreement about that, and I have been presented with a document which contains the detail of what the parties have agreed.  However, it is not sought that I make orders in those terms today, and it is only a matter of me noting the parties’ agreement.

I certify that the preceding eight (8) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on

7 April 2015.

Associate:     

Date:              12 May 2015