Bianca and Bianca

[2007] FamCA 767

FAMILY COURT OF AUSTRALIA

Bianca & Bianca [2007] FamCA 767

FAMILY LAW – APPEAL FROM DECISION OF FEDERAL MAGISTRATE – Appellant withdraws Notice of Appeal – costs awarded to Respondent

Family Law Act 1975 (Cth)

APPELLANT: Ms Bianca

RESPONDENT: Mr Bianca

INDEPENDENT CHILDREN’S LAWYER: Ms Leeson

FILE NUMBER: ADC 482 of 2007

APPEAL NUMBER: SA 14 of 2007

DATE DELIVERED: 13 April 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 13 April 2007

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

14 February 2007

22 February 2007

LOWER COURT MNC: [2007] FMCAfam 127

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Annells

SOLICITOR FOR THE APPELLANT: Herman Bersee

COUNSEL FOR THE RESPONDENT: Mr Bowler

SOLICITOR FOR THE RESPONDENT: Cynthia Toose & Associates

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms Leeson

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Nicola Atchison

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Bianca and Bianca.

Orders

1. That the Amended Notice of Appeal filed on 23 March 2007 be dismissed.

2. That the appellant mother pay to the solicitors for the respondent on behalf of the respondent father the sum of ONE THOUSAND SIX HUNDRED AND FIFTY DOLLARS [$1,650.00] by way of costs and to the Independent Children’s Lawyer the sum of TWO HUNDRED DOLLARS [$200.00] by way of costs such total sum of ONE THOUSAND EIGHT HUNDRED AND FIFTY DOLLARS [$1,850.00] to be paid within twelve [12] months of the date of this order.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 14 of 2007
File Number: ADC 482 of 2007

Ms Bianca

Appellant

And

Mr Bianca

Respondent

EX TEMPORE REASONS

1. This was intended to be the hearing of the Notice of Appeal filed by the appellant.  The original Notice of Appeal was filed on 16 February 2007, but there is an Amended Notice of Appeal which was filed on 23 March 2007.  That amended notice was the notice that the appellant was intending to proceed upon today.  However, I am told by counsel for the appellant mother that her instructions are to withdraw the Amended Notice of Appeal.

2. In these circumstances, I now have applications for costs before me, firstly by the respondent father, and his counsel seeks $3,300.00 which comprises a half day's preparation and a half day's attendance today, on the basis that we are not going to be here for half a day but that was the time set aside to hear this matter.  Secondly, there is an application by the Independent Children’s Lawyer for the sum of $1,600.00 plus GST.  That is the amount, I am told, that is allowed by the Legal Services Commission for counsel in relation to the preparation and the hearing of an appeal from a federal magistrate.

3. This is a matter which commenced, at least in this court, by way of Notice of Appeal filed on 16 February 2007.  The applicant sought to appeal against orders made by Lindsay FM on 14 February 2007.  The matter came back before that same Federal Magistrate on 22 February 2007 when further orders were made.  At the directions hearing held in this matter on 16 March 2007, the issue was raised as to whether there needed to be an amended notice of appeal - in other words, to expand the appeal to include an appeal against the orders made on 22 February 2007 and I gave the appellant wife leave to file an Amended Notice of Appeal.  That has occurred, and the amended notice was filed on 23 March 2007. 

4. At that same directions hearing, I set this matter down for hearing today and made the usual orders for the filing and serving of lists of documents and summaries of argument.

5. I notice in looking at my order of 16 March 2007 that the Independent Children’s Lawyer did not appear on that day and that has now been clarified for me.  The Independent Children’s Lawyer was appointed in the order of 14 February 2007.  There is no Notice of Address for Service filed by the Independent Children’s Lawyer in the Federal Magistrates Court, but it seems that Ms Atchison was appointed and she made that known to the other parties early in April 2007.  As counsel for the Independent Children’s Lawyer has indicated, a decision was then made by Ms Atchison to take part in this appeal and she briefed counsel. 

6. Counsel for the Independent Children’s Lawyers has explained to me that her position was somewhat difficult because, for reasons which I will not repeat, the reasons for judgment of the Federal Magistrate were not made available to the parties or the Independent Children’s Lawyer although, as I have ascertained, all it needed was someone to have a look at the Federal Magistrates Court file because those reason are documents 8 and 9 in that file.  Be that as it may, that created a difficulty in terms of preparation of the matter for this appeal, and I should say that that difficulty also was confronted by counsel for the respondent father in his preparation of the matter.

7. Counsel for the appellant mother tells me that yesterday or thereabouts a decision was made by her client, on advice presumably, to withdraw the appeal, and that is what has occurred today.  Counsel for the mother advised the Independent Children’s Lawyer and the respondent's solicitor late yesterday afternoon of the instructions that she then had from her client.

8. In terms of the application for costs, counsel for the mother has submitted that her client is not in a financial position to meet any order for costs.  She tells me that her client is not working, and that she is on a Newstart allowance.  The only asset that she has is that she is a joint owner of a block of land, I assume in the … area. She rents her own accommodation and, apart from that, she has no assets.

9. As with any application for costs, I need to have reference to Section 117 of the Family Law Act, but I feel comfortable in saying that there are certainly circumstances justifying an order for costs in this case.  It was the appellant mother who made the decision to file an appeal and then file an amended notice of appeal, and to proceed to this point.  There was also no suggestion made at the directions hearing that the appeal might not proceed.  Orders were made in the usual way for the appeal to be set down and for documents to be filed.  Those orders for the filing of documents were complied with and, on the cusp of the hearing, the mother has decided not to proceed. 

10. The effect of that is obvious.  The respondent father has been put to costs in preparing the appeal and in the attendance today of counsel, costs which in the normal course of events he would not have had to have borne if the appeal had not been filed nor continued to this point.  However, I frankly take a different view with the Independent Children’s Lawyer.  I am not satisfied that the Independent Children’s Lawyer needed to take a part in these proceedings, save and except to the point of perhaps appearing and indicating support in terms of the dismissal of the appeal. 

11. The Independent Children’s Lawyer only came into the matter in early April.  There has been nothing filed by the Independent Children’s Lawyer, not even a notice of address for service and thus, although obviously counsel has been briefed and costs have been incurred by the Legal Services Commission, I am not satisfied that there is a proper basis for the order for costs sought by the Independent Children’s Lawyer.  However, there should be some costs for the attendance because I am satisfied that it was appropriate for the Independent Children’s Lawyer to attend at the hearing and support the dismissal of the appeal.

12. The issue that is obviously concerning me, though, is the appellant's financial circumstances.

13. I have ascertained what, in general terms, the respondent father's financial position is, and counsel for the father has told me what he can of his instructions about that, but that provided the opportunity to make the pertinent point that it seems that the mother is not funded by legal aid for the purposes of the appeal and thus it follows that she must be paying her solicitors privately.  That obviously bears upon her financial circumstances and indicates an ability to meet an order for costs.  Thus I propose to make an order.

I certify that the preceding
13 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 13^th day of April 2007.

……………………………………….
Associate