Bart and Mitropoulos
[2009] FamCAFC 234
•4 December 2009
FAMILY COURT OF AUSTRALIA
| BART & MITROPOULOS | [2009] FamCAFC 234 |
| FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – Consent orders allowing the appeals – Costs certificate granted for the respondent |
| APPLICANT: | Ms BART |
| RESPONDENT: | Mr MITROPOULOS |
| APPEAL NUMBER: | NA | 66 | of | 2009 |
| NA | 80 | of | 2009 |
| FILE NUMBER: | BRC | 104 | of | 2009 |
| DATE DELIVERED: | 4 December 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Warnick J |
| HEARING DATE: | 4 December 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 17 March 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 944 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Ms Bassant |
| SOLICITORS FOR THE APPLICANT: | Legal Aid NSW |
| SOLICITOR FOR THE RESPONDENT: | Ms Stratton-Funk |
| SOLICITORS FOR THE RESPONDENT: | Nita Stratton-Funk and Associates |
Orders
By consent and pursuant to Part 10.4 of the Family Law Rules, orders, declarations and notations are made in terms of the Minutes of Consent attached.
The respondent is granted a certificate pursuant to s.6(1) of the Federal Proceedings (Costs) Act 1981 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 in respect of the costs incurred by the respondent in relation to the appeal.
Minute of Consent
BY CONSENT IT IS ORDERED:
Appeals allowed.
Orders made 19 May 2009 and 17 March 2009 by Federal Magistrate Howard of the Federal Magistrates Court of Australia at Brisbane in matter no.BRF104/2009 are set aside.
IT IS NOTED that publication of this judgment under the pseudonym Bart & Mitropoulos is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| IN THE APPELLATE JURISICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
APPEAL NUMBER: NA66 of 2009
NA80 of 2009
FILE NUMBER: BRC 104 of 2009
| Ms BART |
Applicant
And
| Mr MITROPOULOS |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
On the 17 March 2009, Howard FM made orders in proceedings between Mr Mitropoulos, whom I shall refer to as the father, and the child support agency. The proceedings related to child support for a child of the father and Ms Bart. Ms Bart was not a party to the proceedings determined by the Federal Magistrate on 17 March 2009, notwithstanding that the proceedings were treated by the court as departure application proceedings. In short, the mother ought to have been a party.
When she became aware of the orders, she appealed. There was a subsequent order made, by consent, amending the orders of 17 March 2009, but in a way which left the mother dissatisfied and she has appealed that order as well.
The husband has conceded that the appeals must succeed. The application for my determination today is that on behalf of the mother that the father pay costs of and incidental to the appeal. If I was satisfied of other matters that on those matters alone the father ought to pay the costs of the appeal, I would not be discouraged from making an order against the father because of what is said of his financial circumstances. Rather, I would accept the submissions of Ms Bassant that, having regard to the quantum of costs sought, just over $3000, and the income of the father at over $100,000 a year, that he has the capacity to pay, certainly over a period of time, notwithstanding that his asset position is either finely balanced or possibly even in the red.
However, in my view the appeal was provoked by an error by the court. The father was self-represented in those proceedings. When he became aware of the mother’s appeal, he sought legal advice. I accept what is said in the submissions on behalf of the father in relation to the need for the advisors to gather necessary information before giving advice that he ought consent to the appeal. In those circumstances, in my view, it would be unfair to make an order for costs against him. This is a case in which no order for costs should be made in respect of the appeal.
The father seeks a certificate in relation to the appeal and is entitled, in the circumstances I have described, in my view, to be granted a certificate and I will so order.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick.
Associate:
Date: 22 December 2009
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