Bakker & Kane - [2022] FedCFamC1A 215

Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Bakker & Kane [2022] FedCFamC1A 215

Appeal from: Kane & Bakker [2022] FedCFamC1F 699

Appeal number(s): NAA 208 of 2022

File number(s): SYC 8109 of 2018

Judgment of: ALDRIDGE, TREE & WILSON JJ

Date of judgment: 16 December 2022

Catchwords: FAMILY LAW – APPEAL – COSTS – Where the parties agreed on a slight variation to the appealed orders under the slip rule – Where those orders were made at the appeal hearing and the appeal was subsequently dismissed by consent – Where the respondent and the Independent Children’s Lawyer (“ICL”) sought orders for costs – Where the respondent conceded to the application of the slip rule at the appeal – Where the appellant was justified to some extent in bringing the appeal – Where the ICL contended that the appeal was not in the best interests of the child and that the issue could have been remedied at first instance – No order as to costs between the parties – Appellant and respondent to equally pay the costs of the ICL in a fixed sum.

Legislation:
Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13

Number of paragraphs: 21

Date of last submissions: 1 December 2022

Date of hearing: 22 November 2022

Place: Sydney

Counsel for the Appellant: Mr Weightman

Solicitor for the Appellant: ATW Family Law

Counsel for the Respondent: Ms Mahoney

Solicitor for the Respondent: Fox & Staniland Lawyers

Counsel for the Independent Children’s Lawyer: Mr Livingstone

Solicitor for the Independent Children’s Lawyer: Stidwell Solicitors
ORDERS

NAA 208 of 2022
SYC 8109 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS BAKKER

Appellant

AND:
MR KANE

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

ALDRIDGE, TREE & WILSON JJ

DATE OF ORDER:

16 december 2022

THE COURT ORDERS THAT:
1.The respondent’s application as to costs is dismissed.
2.The appellant and the respondent shall each pay the sum of $2,233 to the Independent Children’s Lawyer for her costs of the appeal.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kane & Bakker has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, TREE & WILSON JJ:

A suite of interim parenting orders were made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 30 August 2022 concerning the parties’ child, who was born in 2018. Ms…

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 Bakker & Kane

Details

AGLC: Bakker & Kane [2022] FedCFamC1A 215
Case: [2022] FedCFamC1A 215
Decision Date

CaseChat Overview and Summary

Bakker & Kane [2022] FedCFamC1A 215 concerned an appeal against interim parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) concerning the parties' child, born in 2018. The mother, Ms Bakker, appealed against these orders, despite the dispute regarding the appropriate final parenting orders being scheduled for hearing on 12 December 2022. The appeal was heard by the Full Court on 22 November 2022. The parties reached an agreement on a slight variation to the orders under the slip rule, which was subsequently dismissed by consent. The father, Mr Kane, sought an order for the payment of his costs of the appeal in the sum of $12,388.84. The court was required to determine whether the circumstances justified an order for costs other than that provided in s 117(1) of the Family Law Act 1975 (Cth) – namely, that each party bear their own costs.

The court found that the orders made by the primary judge did not substantially change the earlier orders which applied. The child continued to live with the mother and spend approximately the same amount of time with the father, with the details of how that time was to be spent altered somewhat. The court concluded that the mother was justified, to some extent, in bringing the appeal due to the father's failure to promptly concede the application of the slip rule. However, the appeal went beyond the order affecting the planned holiday, and many of the grounds would have faced significant difficulties. Considering these factors, the court was not satisfied that the circumstances justified a costs order other than that provided for by s 117(1) of the Act. The father's application for costs was dismissed.

The Independent Children's Lawyer (ICL), who took a neutral stand on the appeal but suggested that the appeal was not in the best interests of the child and that any infelicities in the orders could be remedied at the final hearing, sought an order for the payment of her costs. The court found it appropriate that an order be made for the payment of her costs, especially in circumstances where it was not suggested that the parties lacked the means to pay them. Given the outcome of the costs application between the parties, the court ordered that the parties should each bear half of the ICL's costs.

In conclusion, the court dismissed the father's application for costs and ordered that each party bear their own costs. Additionally, the court ordered that the parties should each pay half of the Independent Children's Lawyer's costs. The appeal was dismissed by consent, and the parties agreed on a slight variation to the orders under the slip rule.

Orders