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 | of | 2008 |
| APPEAL NUMBER: | NA | 82 | of | 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…
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- AGLC
- Arndale and Kingley (Costs) [2011] FamCAFC 27
- Case
- [2011] FamCAFC 27
- Decision Date
CaseChat Overview and Summary
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
1.
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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