Bookhurst and Bookhurst (Costs) - [2010] FamCAFC 103

FAMILY COURT OF AUSTRALIA

BOOKHURST & BOOKHURST (COSTS)

[2010] FamCAFC 103

FAMILY LAW - COSTS – Appellant seeks costs against the respondent – Respondent seeks no order as to costs – Appeal successful in part – Appeal opposed by the respondent and the Independent Children’s Lawyer – Error by trial judge in relation to supervision order – Appellant unsuccessfully pursued appeal against discretionary matters – No error found in relation to those matters – Respondent made an offer of settlement – Orders sought by the appellant in the appeal were substantially different to those made by the Full Court – No circumstances justifying an order for costs.

FAMILY LAW - COSTS – CERTIFICATES – Error on the part of the trial judge which led to an order for re-hearing – Certificates for the re-hearing granted.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Browne v Green (2002) FLC 93-115
Collins and Collins (1985) FLC 91-603
Harris and Harris (1991) FLC 92-254
Penfold v Penfold (1980) FLC 90-800

APPELLANT:

Mr Bookhurst

RESPONDENT:

Ms Bookhurst

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

FILE NUMBER:

SYC

1832

2009

APPEAL NUMBER:

2009

DATE DELIVERED:

11 June 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, May and O’Ryan JJ

DATE OF SUBMISSIONS:

31 March 2010, 13 April 2010 and 28 April 2010

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

15 January 2009

LOWER COURT MNC:

[2009] FamCA 6

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Slade Manwaring Solicitors

SOLICITOR FOR THE RESPONDENT:

Karras Partners Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

Orders

It is ordered that there be no order as to the costs of the appeal and no order as to the costs reserved on 25 February 2009, 20 March 2009, 28 April 2009 and 26 June 2009.
The Court grants to the appellant, the respondent and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant, respondent and the Independent Children’s Lawyer in respect of the costs incurred by the appellant, respondent and the Independent Children’s Lawyer in relation to the re-hearing of the application.

IT IS NOTED that publication of this judgment under the pseudonym Bookhurst & Bookhurst (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 19 of 2009
File Number: SYC 1832 of 2009

Mr Bookhurst

Appellant

And

Ms Bookhurst

Respondent

REASONS FOR JUDGMENT

Introduction

On 3 March 2010 the Full Court allowed the father’s appeal, in part, against parenting orders made by Rose J on 16 January 2009. The appeal had been resisted by both the mother and the…

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 Bookhurst and Bookhurst (Costs)

Details

AGLC: Bookhurst and Bookhurst (Costs) [2010] FamCAFC 103
Case: [2010] FamCAFC 103
Decision Date: 11 June 2010

CaseChat Overview and Summary

The case of Bookhurst and Bookhurst concerns a dispute within family law, specifically focusing on the allocation of costs. The appellant, the father, sought costs against the respondent, the mother, following a contentious appeal. The appeal was partially successful, but the mother and the Independent Children’s Lawyer opposed the father’s application for costs. The appeal pertained to several issues, including the setting aside of a supervision order and the allocation of parental responsibility. The Full Court found an error in the trial judge’s decision concerning the supervision order but found no error in the discretionary matters. Additionally, the father’s appeal sought orders substantially different from those made by the Full Court. Consequently, the Full Court concluded that no circumstances justified an order for costs against the mother.

The legal issues in this case involved the trial judge’s error in imposing an unworkable supervision order, the natural justice concerns surrounding the father’s lack of opportunity to respond to specific terms of the order, and the father’s unsuccessful appeal against other discretionary matters. The Full Court had to determine whether the appellant's appeal was meritorious enough to warrant an order for costs against the respondent. Furthermore, the court needed to consider the substantial differences between the orders sought by the appellant and those granted by the Full Court. The court also had to address whether the re-hearing necessitated by the error should attract costs.

The Full Court determined that while the trial judge's error regarding the supervision order warranted setting aside the orders, the father’s appeal against other discretionary matters was unsuccessful. The Full Court found no error in the trial judge’s handling of those matters. Additionally, the orders sought by the father during the appeal were significantly different from those ultimately made by the Full Court. Consequently, the Full Court held that there were no circumstances justifying an order for costs against the mother. The Full Court also noted that the father’s appeal was not fully meritorious, and the orders sought were substantially different from those made by the Full Court.

The final orders of the Full Court were that there be no order as to the costs of the appeal and no order as to the costs reserved on specified dates. However, the Court granted a costs certificate to the appellant, respondent, and the Independent Children’s Lawyer. This certificate authorised the Attorney-General to pay the costs incurred by the parties in relation to the re-hearing of the application, pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

Orders

Orders of the court

It is ordered that there be no order as to the costs of the appeal and no order as to the costs reserved on 25 February 2009, 20 March 2009, 28 April 2009 and 26 June 2009.

The Court grants to the appellant, the respondent and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant, respondent and the Independent Children’s Lawyer in respect of the costs incurred by the appellant, respondent and the Independent Children’s Lawyer in relation to the re-hearing of the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Full Court set aside orders 4 and 5 made by Rose J for the following reasons:63.In the circumstances of this case, in view of the considerable limitation placed on the father’s time with the children because of the order for supervision, the limited opportunity for the father or his lawyers to make submissions in relation to the ideas raised by the trial judge may have lead in itself to a consideration of whether such order should be set aside. The order as ultimately made, order 5(d), was far more demanding than as discussed with counsel. 64.With respect to the question of natural justice, his Honour raised the possibility of requiring the father to provide some assurance to the mother with counsel during submissions on the final day of hearing. However, at no time were the specific terms of order 5 contemplated and the father was not afforded an opportunity to provide evidence in relation to this requirement.65.The difficulty was exacerbated in this case by the failure of the father’s lawyers to call the father’s treating psychiatrist by reason of their interpretation of his Honour’s earlier ruling.Conclusion66.It is clear to us that paragraph 5 of the orders must be set aside. It is essential as his Honour was concerned to do, to create some mechanism for the supervision of the father’s time to be revisited and consideration given to its continuation, cessation or perhaps modification. Unfortunately, the method chosen by his Honour is unworkable for a number of reasons including as explained by Dr Waters. It is also necessary to set aside paragraph 4 of the orders as they somewhat depend on paragraph 5. 67.The matter is to be remitted. We would not want to fetter the discretion of the trial judge hearing the matter. A period of more than a year has expired since the orders were made by Rose J. As we see it, the issue to be determined is what time should the children have with the father, if it is to be supervised, for how long such supervision should persist, and that some review mechanism be set in place. As we have already observed, the father also unsuccessfully appealed against orders relating to a range of discretionary matters, including the trial judge’s allocation of parental responsibility for health, culture and religion to the mother only, his treatment of the evidence relating to the views of the children and the evidence of the single expert. The Full Court was not persuaded by any of the submissions in relation to those complaints. The orders sought by the husband in the appeal included orders for unsupervised time with the children during school term, being substantial time, school holiday periods and that both he and the mother have equal shared parental responsibility for the children. The father also sought compensatory time for any time lost because the children were with their mother on Jewish holidays and orders in relation to telephone communication. We also refer to the parenting orders which the father initially sought before the trial judge as set out in the response filed 23 March 2007. Those orders included provision for the children to spend time with the father in a week about arrangement during the school term and for half of the school holiday periods. The father also sought an order for equal shared parental responsibility.

Ratio Decidendi

Legal Principle Established

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