Family Court of Australia

EDMONSON & EDMONSON (no. 2)	[2012] FamCAFC 142	

FAMILY LAW – APPEAL – Respondent undertook not to rely on orders – No remaining issues for determination by the Full Court.

FAMILY LAW – COSTS – Where cost certificates are sought – Merit in the appeal – Cost certificates granted.	

Federal Proceedings (Costs) Act 1981 (Cth) 	

Appellant:	Ms Edmonson	

Respondent:	Mr Edmonson	

File Number:	PTW	6992		of	2010	

Appeal Number:	WA	9L		of	2011	

Date Delivered:	12 June 2012	

Place Delivered:	Perth	

Place Heard:	Perth	

Judgment of:	May, Thackray and Ainslie-Wallace JJ	

Hearing date:	12 June 2012	

Lower court jurisdiction:	Family Court of Western Australia	

lower court judgment date:	25 February 2011	

LOWER COURT MNC:	PTW 6992 of 2010	

REPRESENTATION

COUNSEL FOR THE Appellant:	In person	

COUNSEL FOR THE RESPONDENT:	In person	

Orders
BY CONSENT:
(1)	The appeal be allowed.
(2)	Orders 5 and 6 of the orders made by Magistrate Monaghan on 25 February 2011 be set aside.
IT IS FURTHER ORDERED:
(3)	There be no order as to costs.
(4)	The Court grants to the appellant wife 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 wife in respect of the costs incurred by her in relation to the appeal.
(5)	The Court grants to the respondent husband 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 husband in respect of the costs incurred by him in relation to the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Edmonson & Edmonson (No. 2) 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 Perth	

Appeal Number: WA 9L of 2011 
File Number: PTW 6992 of 2010

Ms Edmonson 	
Appellant

And

Mr Edmonson 	
Respondent

EX TEMPORE
REASONS FOR JUDGMENT
May J
1.	In this matter I will ask Thackray J to deliver the reasons of the Court.
Thackray J
2.	Before the Full Court is the re-amended Notice of Appeal of the appellant, Ms Edmonson, filed on 5 December 2011.  The original Notice of Appeal was filed on 25 March 2011.
3.	The Notice of Appeal seeks to set aside paragraphs 5, 6 and 9 of the orders made by Family Law Magistrate Monaghan in the Magistrates Court of Western Australia on 25 February 2011.  
4.	Late last week, the respondent, Mr Edmonson, provided to the Court a written undertaking not to enforce paragraph 5 of the orders made by the learned Magistrate, which required the sale of the former matrimonial home of the parties.
5.	During the course of discussion this morning, the respondent has advised that he would consent to the discharge of paragraphs 5 and 6 of the orders of the Magistrate, both of which relate to the sale of the former matrimonial home.
6.	In discussion with the appellant today concerning her objective in seeking also to set aside paragraph 9 of the orders, it became apparent that her aim was to agitate an issue concerning obtaining access to funds to allow her to engage a forensic accountant.  As we have pointed out to the appellant, this is an issue which has not been directly addressed in the Magistrates Court and it is not appropriate that this Full Court seek to deal with that issue.  The appellant has been advised that in the event she is not able to resolve that issue with the respondent it would be necessary for her to file a Form 2 application in the Family Court of Western Australia, supported by an affidavit.  That application would then, no doubt, be listed for hearing before a magistrate.
7.	In these circumstances, there are no issues for the Full Court to determine, other than the question of the costs of this appeal.  
8.	The appellant, properly, in my view, does not seek an order for costs against the respondent, but rather seeks a certificate under the Federal Proceedings (Costs) Act 1981(Cth) to cover at least portion of the costs which she has incurred in prosecuting this appeal.  The respondent also seeks a costs certificate to cover a portion of the costs that he has incurred in defending the appeal.
9.	Costs certificates can be granted only when an appeal is allowed on a question of law.  It is agreed the appeal should be allowed but, as we have not heard full argument, the question arises whether it can be said the appeal has been allowed on a question of law.  The Full Court has had occasion previously to deal with applications for costs certificates in similar circumstances, and has sometimes granted such certificates if satisfied the appeal would have been allowed had the matter been argued.    
10.	The application for costs certificates thus requires a brief consideration of the merits of the appeal.  It should be noted in this regard that the matter was heard by the learned Magistrate in what would appear to have been a busy list, and was dealt with on an interlocutory basis, with the benefit of oral submissions.  As I saw it, the main complaint the appellant wished to advance on appeal was that the Magistrate prematurely determined it was appropriate to order the sale of the home (in which she was living with the one child of the relationship and another child of a prior relationship) in circumstances where it was her case that the respondent had not properly disclosed his financial position.
11.	At the time of the hearing before the Magistrate, the appellant wanted to follow various interlocutory procedures, including the issuing of subpoenas, in order to ascertain whether or not the respondent had, in fact, properly disclosed his financial position.  It should be noted that the respondent’s application for the sale of the property came in circumstances where the appellant had available to her a very large sum of money that she had drawn down on a line of credit. The learned Magistrate determined it was appropriate for her to put that money, or most of it, back into the line of credit account.
12.	In my view, the approach that his Honour adopted, and with great respect to him, knowing he was dealing with a very busy list of matters, was not appropriate.  The proper outcome on that occasion, in my view, would have been to give the appellant some further time in which to follow the interlocutory processes that she had outlined to the Magistrate.  Whilst those processes were being pursued, the mortgage could have been paid from the line of credit, which was the way in which the mortgage had been paid up until that time – and which we are told is the way in which it is still being paid today.
13.	On that basis alone, I would have found merit in the appeal, and allowed the appeal.  It is therefore unnecessary to deal with the various other complaints that the appellant has advanced.  It is also unnecessary to consider whether the further evidence upon which she wished to rely would, in fact, have advanced her arguments. 
14.	There being an error of law demonstrated, the basis for cost certificates is made out, and I would make an order granting a certificate to both parties.
May J
15.	I agree with the reasons given by Justice Thackray and have nothing further to add.
Ainslie-Wallace J
16.	I also agree with the reasons given by Justice Thackray.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 12 June 2012.

Associate: 

Date:  3 September 2012