Arndale and Kingley (Costs) - [2011] FamCAFC 27

FAMILY COURT OF AUSTRALIA

ARNDALE & KINGLEY (COSTS)

[2011] FamCAFC 27

FAMILY LAW - APPEAL – Costs – Where leave to appeal was sought – Where the delay was partly unexplained – Where there would be prejudice to the father should leave be granted – Where the mother’s application in a case would provide similar remedies – Application dismissed.

FAMILY LAW - APPEAL – Costs – Where written submissions as to costs provided – Where the mother’s application was wholly unsuccessful – Where the Independent Children’s Lawyer sought costs against the mother – Where the mother submitted that an appeal would not be necessary if the father and the Independent Children’s Lawyer consented to the removal of the Family Report writer – Where the mother is not in a financial position to pay costs – Where the mother has a serious medical illness – Where the application was dismissed on the basis of utility – Where s 117(4) prescribes that a order for costs can not be made – No order as to costs.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 r 8.02(2)(b); r 19.18(1)

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123
Re Collins and the Victorian Legal Aid Commission (1984) FLC 91-508
Telfer and Telfer (1996) FLC 92-688
Re David: Costs (1998) FLC 92-809
Reisner & Reisner (Costs) [2010] FamCA 588

APPELLANT:

Ms Arndale

RESPONDENT:

Mr Kingley

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

1363

2008

APPEAL NUMBER:

2010

DATE DELIVERED:

20 January 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

By way of written submissions

JUDGMENT OF:

May J

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

3 December 2009

LOWER COURT MNC:

[2009] FamCA 1122
[2009] FamCA 1219

REPRESENTATION

SOLICITOR FOR THE APPELLANT:	In person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Written submissions by Clare Dart, Solicitor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

The application of the Independent Children’s Lawyer for costs against the mother in relation to the mother’s application filed 19 July 2010 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Arndale & Kingley (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISIDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 82 of 2010
File Number: BRC 1363 of 2008

Ms Arndale

Appellant

And

Mr Kingley

Respondent

REASONS FOR JUDGMENT

Introduction

On 10 September 2010 the court dismissed the mother’s application for leave to appeal out of time.
Reasons for judgment were provided when the orders were made. It was ultimately concluded that in the circumstances of the case, leave ought not to be granted given the partly unexplained delay, the prejudice to the father in granting leave including the substantial delay in the hearing of the trial should leave be given. In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Arndale and Kingley (Costs)

Details

AGLC: Arndale and Kingley (Costs) [2011] FamCAFC 27
Case: [2011] FamCAFC 27
Decision Date: 20 January 2011

CaseChat Overview and Summary

The case involves a dispute concerning the costs associated with an application filed by a mother in relation to her children, which was lodged on 19 July 2010. The Independent Children's Lawyer sought to recover costs from the mother. The matter was heard in the Family Court of Australia. The primary legal issue that the court had to resolve was whether the Independent Children's Lawyer was entitled to recover costs from the mother for the application filed on the specified date.

The court examined the circumstances under which the application was made and the legal principles governing the allocation of costs in such cases. It considered the role of the Independent Children's Lawyer and the factors that might justify awarding costs against a party. After a thorough analysis, the court concluded that the Independent Children's Lawyer was not entitled to recover costs from the mother for the application filed on 19 July 2010. The court found that the application did not meet the criteria for awarding costs against the mother, primarily because it did not serve the interests of the children. Therefore, the court dismissed the application for costs.

In summary, the court's decision effectively dismissed the Independent Children's Lawyer's application for costs against the mother. The reasoning focused on the absence of a sufficient basis for imposing costs on the mother for the application in question, ultimately leading to the dismissal of the costs application.

Orders

Orders of the court

The application of the Independent Children’s Lawyer for costs against the mother in relation to the mother’s application filed 19 July 2010 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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