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 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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 Bakker, the child’s mother, appealed against these orders even though the dispute as to the appropriate final parenting orders was listed for hearing on 12 December 2022.
The appeal came before the Full Court for hearing on 22 November 2022. In circumstances which we shall discuss in more detail shortly, the parties agreed on a slight variation to the orders under the slip rule. Those orders were made and the appeal was subsequently dismissed by consent.
The respondent father, Mr Kane, sought an order for the payment of his costs of the appeal in the sum of $12,388.84. These reasons explain why we are not satisfied that the circumstances justify an order other than that provided in s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) – namely that each party bear his or her own costs.
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, however the details of how that time was to be spent was altered somewhat. The orders provided for two periods of block time to start on 29 December 2022.
The mother had, at the least, plans to travel with the child between 16–28 December 2022, although the father disputed that any actual arrangements had been made. It emerged that the other orders made by his Honour would, if enforced by the father, prevent that travel with the mother.
The primary judge determined a stay application on 23 September 2022. In the course of refusing that stay, his Honour referred to the proposed holiday and said:
14.Although Order 1 discharged a former order made in September 2020 (Order 3) allowing the mother to unilaterally suspend the child’s time with the father so she could take a holiday with the child before the end of 2022, Order 3(a)(iv) was made to expressly avoid any incursion on the Christmas vacation planned by the mother with the child. Her counsel informed the Court she would return from the holiday with the child on 28 December 2022, so the child will begin spending time with the father from the following day. …
(Emphasis added)
It is clear beyond argument that his Honour intended that the orders that he had made would permit the mother to take the planned holiday with the child.
Unfortunately, the primary judge did not pick up that the planned holiday was due to start on 16 December 2022 and that the other orders provided for the time the child was to spend with the father impinged on its commencement.
It is clear therefore that the orders did not completely reflect the intention of his Honour and should properly have been amended under r 10.13(1)(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which the Full Court subsequently did.
As we have said the appeal came on for hearing on 22 November 2022. The appeal was not limited to the orders affecting the planned holiday time but extended to challenge all of the orders made on a wide range of grounds.
At the outset, we raised the utility of the appeal given the impending final hearing. There were several adjournments during the day so that the parties could attempt to resolve their differences. Eventually, after we made plain our provisional view as to the operation of the slip rule, the parties agreed to the orders set out earlier.
The court, when determining an application for costs, is to have regard to the matters set out in s 117(2A) of the Act. The parties raised only three for consideration.
The father submitted that the mother was wholly unsuccessful because the appeal was dismissed. That is so, but that only occurred after agreement was reached as to the planned holiday. We accept, however, that the appeal went beyond that order and that many of the grounds, at least on the face of them, would have faced significant difficulties.
Both parties relied on the conduct of the other and references were made to the very long and detailed offers of settlement that passed between the lawyers after 30 August 2022, which attempted to resolve issues arising from nearly all of the orders made by the primary judge.
Other than for one matter, little can be drawn from the correspondence except the parties’ complete inability to agree on anything, even with the assistance of lawyers.
The relevant matter is that in response to the question of holiday time, the father’s answer was that there was no evidence that the holiday had been booked on any particular dates and that the planned holiday would mean that the child would have a break from spending time with the father for nearly three weeks, which was too long.
Neither point, however, is an answer to the application of the slip rule which, in its present application, turns on the intention of the primary judge. As we have said, it is clear beyond argument that the primary judge intended the mother to have the benefit of Order 3 of the August 2022 orders.
This point should have been properly and promptly conceded by the father. He did not do so until late in the day during the hearing of the appeal. Thus the mother was justified, to some extent, in bringing the appeal.
Taking these matters into account we are not satisfied that the circumstances justify a costs order other than that provided for by s 117(1) of the Act. The father’s application for costs will be 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. She also made helpful submissions pointing out some of the difficulties faced by the mother.
It is appropriate that an order be made for the payment of her costs, especially in circumstances where it is not suggested that the parties lack the means to pay them. Given the outcome of the costs application between the parties, the parties should each bear half of the ICL’s costs.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Tree & Wilson. Associate:
Dated: 16 December 2022
0
0
0