Heidari & Ebadi [2020] FamCAFC 316 (14 December 2020)

Last Updated: 22 December 2020

FAMILY COURT OF AUSTRALIA

REPRESENTATION

ORDERS MADE 1 DECEMBER 2020 AS AMENDED ON 4 DECEMBER 2020 PURSUANT TO R 17.02 OF THE FAMILY LAW RULES 2004 (CTH)

(1) Leave to appeal be granted.

(2) The appeal be allowed.

(3) The orders made by the primary Magistrate on 10 June 2020 be set aside.

(4) The proceedings be remitted to the Magistrates Court of Western Australia for rehearing by a family law Magistrate other than the primary Magistrate.

(5) The Court grants to the appellant husband a costs certificate pursuant to 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 husband in respect of the costs incurred by him in relation to the appeal.

(6) The Court grants to the respondent wife a costs certificate pursuant to 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 wife in respect of the costs incurred by her in relation to the appeal.

(7) The Court grants to the appellant husband and the respondent wife costs certificates pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the parties in respect of the costs incurred by them in relation to the rehearing.

IT IS NOTED THAT:

The reasons for judgment of the Full Court will follow these orders and will be published and provided to the parties as soon as is practicable.





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 Heidari & Ebadi 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).

Appeal Number: WEA 12 of 2020

File Number: PTW 2596 of 2020

Appellant

And

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 1 December 2020 this Court heard an appeal from orders made by a family law Magistrate of the Magistrates Court of Western Australia on 10 June 2020.
2. Those orders primarily provided for the appellant husband to pay interim spousal maintenance to the respondent wife.
3. The appeal was initially opposed by the respondent wife.
4. In the Amended Notice of Appeal filed on 5 November 2020, the appellant husband, as was required, sought leave to appeal, and if leave was granted to appeal from the said orders.
5. Following discussion between bench and bar, and a brief adjournment, counsel for the respondent wife advised that he had instructions to consent to the appeal being allowed, the orders being set aside, and the matter being remitted to the Magistrates Court of Western Australia for rehearing by a family law Magistrate other than the primary Magistrate.
6. On that basis this Court then made those orders by consent, including an order granting leave to appeal.
7. Both parties then made applications for costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) for both the appeal and the rehearing. We also made those orders by consent.
8. We were unable to immediately provide our reasons for judgment, and we indicated that we would attend to that at the earliest available opportunity. These are those reasons.

THE APPEAL

9. There is now ample authority to the effect that an appellate court must be satisfied of error when an appeal is sought by the parties to be allowed by consent (see Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 246 ALR 15; Bhatnagar & Riju [2018] FamCAFC 144; Sielaff & Staatz [2018] FamCAFC 213). Here, this Court is satisfied that leave to appeal should be granted and the appeal should succeed.
10. In essence, the facts relied on in support of the application for leave to appeal echo the grounds of appeal. Thus, if the grounds of appeal demonstrate appealable error(s) then leave to appeal should be granted. Turning then to the grounds of appeal.
11. There are two grounds of appeal raised in the Amended Notice of Appeal, namely:
    1. The learned [Magistrate] failed to take account of a relevant consideration; namely, whether there was an identity of the underlying cause of action in respect of the causes of action determined in the Country A proceedings and the wife’s maintenance applications determined in the Magistrates Court.
    2. The learned [Magistrate] failed to provide adequate reasons in support of [h]er Honour’s finding that the wife was not “prohibited” from agitating her maintenance applications.
12. Essentially, it was the appellant husband’s case at trial, that the respondent wife’s application for interim spousal maintenance should be dismissed on the basis that the issue of spousal maintenance had been determined by another court, namely a court in Country A, and thus the principle of res judicata applied. However, the appellant husband’s argument is that the Magistrate failed to engage with that issue and failed to provide adequate reasons as to why that principle did not apply to prohibit the respondent wife from bringing the application that she did.
13. In her reasons for judgment the Magistrate recorded the basis upon which the appellant husband opposed the application (at [4]). Then, in setting out the relevant background, her Honour included the detail of the previous proceedings in Country A, the orders made, and the payments made by the appellant husband in relation thereto. Her Honour then proceeded to consider the respondent wife’s application for interim spousal maintenance, identifying the relevant sections of the Family Law Act 1975 (Cth), and addressing the factors that her Honour needed to take into account in the context of the evidence before the Court.
14. Her Honour then moved to her conclusions, and, for the first time, addressed the appellant husband’s case that no order should be made, saying as follows:
    64. The husband submits no order should be made for interim spousal maintenance as this matter has already been determined by the Country A Court. The wife’s counsel disputes that, and says this Court has jurisdiction, and the wife clearly has a need for spousal maintenance.
    65. I am not satisfied that an order for alimony in the Country A Court in the amount of $2,500 prohibits an application made in this Court for spousal maintenance in these circumstances, noting both parties are resident in Australia and Australian citizens. Further, the wife is dependent on Centrelink benefits for her support. The wife has a need for spousal maintenance, and the husband has capacity to pay.
    66. Therefore, I intend to make orders in relation to the wife’s application for interim spousal maintenance in the amount sought by her.
15. However, as can be seen, and as submitted by the appellant husband, her Honour fails to engage with whether the principle of res judicata applied. To adopt the language of the appellant husband in Ground 1, her Honour failed to consider “whether there was an identity of the underlying cause of action in respect of the causes of action determined in the Country A proceedings and the wife’s maintenance applications determined in the Magistrates Court”.
16. Further, as per Ground 2 relied on by the appellant husband in the appeal, the reasons provided by her Honour are inadequate as to why she was “not satisfied that an order for alimony in the Country A Court in the amount of $2,500 prohibits an application made in this Court for spousal maintenance in these circumstances, noting both parties are resident in Australia and Australian citizens” (at [65]).
17. It is also unclear why her Honour would note the residence and citizenship of the parties in this context. That does not say anything about whether the fact of the orders made in Country A prevent the Court in Western Australia from exercising jurisdiction to make the spousal maintenance orders that her Honour did.
18. Thus, there is clear merit in the grounds of appeal, and leave to appeal must be granted and the appeal allowed. Given that, the orders must be set aside and the matter remitted for rehearing.

THE COSTS CERTIFICATES

19. The applications are made pursuant to s 9 (the appellant husband), s 6 (the respondent wife) and s 8 (the rehearing) of the Costs Act.
20. Common to those three sections, and specifically in ss (1) of each, it can be seen that there are three conditions which must be satisfied before the discretion to grant costs certificates is enlivened, namely the existence of a Federal appeal, the success of the appeal on a question of law, and the fact that the court granting the certificate has heard the appeal. Plainly the first two of those requirements are satisfied here. The appeal is properly characterised as a Federal appeal, and as we have explained in addressing the grounds of appeal, the appeal has succeeded on a question of law.
21. In relation to the third condition, that has in the past proved to be more problematic, but the law is now settled, and the question of whether there can be a hearing of the appeal for the purpose of those subsections to which we have referred, where the orders disposing of the appeal are made by consent, and without full argument, was considered by the High Court of Australia in Cramer v Davies (1997) 72 ALJR 146. There, Kirby J at [18] held that a broad construction should be given to that expression, and “a hearing” means no more than having the matter listed before the court so that it may dispose of the appeal in a “public and formal way”. Here, the appeal not only has been listed in a public and formal way, but it has proceeded to a hearing. Thus, that requirement is satisfied.
22. The granting of costs certificates though is clearly a discretionary exercise of power, and it is relevant here that the parties have been put to unnecessary expense in respectively pursuing and opposing this appeal, given the errors by the Magistrate that have been demonstrated, and it will be necessary for the matter to be re-litigated.
23. Thus, in the circumstances, this Court is satisfied that the issuing of costs certificates as sought is appropriate.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Ryan JJ) delivered on 14 December 2020.



Associate:



Date: 14 December 2020