Buckley & Buckley

[2013] FamCAFC 150

FAMILY COURT OF AUSTRALIA

BUCKLEY & BUCKLEY [2013] FamCAFC 150

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – COSTS – where the mother withdraws her amended notice of appeal – where the father seeks costs on the basis of that withdrawal – where the mother opposes any order for costs – where there are circumstances which justify an order for costs being made – where impecuniosity is no bar to an order for costs being made where it is otherwise warranted – where the Independent Children’s Lawyer makes no submissions in relation to the withdrawal of the appeal and makes no application for costs – mother ordered to pay the father’s costs of and incidental to the appeal.

Family Law Act 1975 (Cth)

APPELLANT: Ms Buckley

RESPONDENT: Mr Buckley

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 3227 of 2011

APPEAL NUMBER: NA 33 of 2013

DATE DELIVERED: 17 September 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Strickland, Murphy & Tree JJ

HEARING DATE: 17 September 2013

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms A. Black

SOLICITOR FOR THE APPELLANT: Rhonda Sheehy & Associates

COUNSEL FOR THE RESPONDENT: Mr J. Linklater-Steele

SOLICITOR FOR THE RESPONDENT:	JMW Legal
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr G. Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

1. Upon noting that the mother withdraws the appeal, the amended notice of appeal filed on 5 August 2013 be dismissed.

2. The mother pay the costs of the father of and incidental to the appeal calculated on a party/party basis as on and from 18 August 2013 such costs to be as assessed in default of agreement.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Buckley & Buckley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number:  NA 33 of 2013
File Number:  BRC 3227 of 2011

Ms Buckley

Appellant

And

Mr Buckley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

STRICKLAND J

1. On 5 August 2013 the mother filed an amended notice of appeal appealing against orders made by Bell J on 21 June 2013.  Today though a further amended notice of appeal has been tendered and leave has been given to file that amended notice of appeal.  That amended notice consolidates and sets out the 10 grounds of appeal on which it was intended that the appeal would proceed.  However, during the course of the hearing the mother through her counsel has withdrawn the appeal.  The reason for that, as explained to us by Ms Black, is that on 17 August 2013 the parties entered into what is described as a parenting agreement, and that has rendered the appeal nugatory.

2. The parenting agreement is Annexure B to the affidavit filed by the mother’s solicitor on 10 September 2013, and that affidavit was ostensibly an affidavit in support of the opposition of the mother to an application by the father to lead further evidence.  In any event, the document signed by the parties on

   
   

   17 August 2013 set out what on its face appears to be agreed terms in relation to the living and spending time with arrangements between the mother and the child, and the father and the child.

3. Ms Black’s position is that the document is a parenting plan as defined in s 63 of the Family Law Act 1975 (Cth) (“the Act”) and s 64D(1) of the Act therefore applies. The effect of that is, at least from the mother’s point of view, that that renders the appeal as filed nugatory in that the orders that were the subject of that appeal, are no longer the orders that are in existence.

4. I should note that Mr Linklater-Steele for the father does not agree that the document that I have referred to is a parenting agreement, but for the purposes of today, with respect, that does not matter.  It is for the appellant to either pursue or not her appeal, and she has determined not to.

5. Thus, shortly orders will be made finalising the appeal.

6. I also indicate that earlier today it was put to us that orders 5(c) and 5(d) made by Bell J on 21 June 2013 were not orders that would be pursued by the father, and thus there would be consent to the appeal as filed being allowed in part, and orders 5(c) and 5(d) being set aside.  However, given that the appeal has now been withdrawn there is no longer any basis to make such orders.

7. On the basis of the appeal being withdrawn the father now makes an application through his counsel for costs.  It is said in support of that application that the appeal was proceeded with after the agreement that I have referred to was entered into on 17 August 2013, and it should have been appreciated that that agreement rendered the appeal nugatory as Ms Black has now put to us.

8. Mr Linklater-Steele concedes that the father’s legal representatives did not raise this issue with the mother’s legal representatives, but says that it was always open to the mother to withdraw her appeal.  The agreement was negotiated and reached via the officers of the contact centre referred to in the agreement, but apparently it was drawn by the mother’s solicitors.

9. Ms Black indicates her client opposes the order for costs and suggests there is nothing in the client’s conduct which would justify an order for costs being made, but specifically and particularly she relies on her client’s financial circumstances and says that her client is impecunious.  We are obliged under

   
   

   s 117(2A)(a) of the Act to take into account the respective financial circumstances of the parties, as we are also obliged to take into account any conduct of the parties in relation to the proceedings under s 117(2A)(c).

10. I consider that there should be an order for costs.

11. The circumstances are that the appeal has now been withdrawn, and at least on the part of the mother, as of 17 August 2013, namely the date that the parenting agreement was entered into, that rendered the appeal nugatory, yet the appeal has been proceeded with.  Thus I consider that there are circumstances here that justify an order for costs.  I note, of course, the submission that the wife is impecunious but there is ample Full Court authority that says that impecuniosity is no bar to an order for costs being made where it is otherwise warranted.  Here, of course, as I say, albeit as of 17 August 2013 the mother’s position was the appeal was rendered nugatory, it was still proceeded with and thus the father has been obliged to incur legal costs in continuing to respond to the appeal, and in instructing counsel to appear today.

12. I observe that the Independent Children’s Lawyer makes no submissions in relation to the withdrawal of the appeal, and makes no application for costs.

Murphy J

1. I agree with the orders proposed by the presiding judge and with his Honour’s reasons and I have nothing to add.

Tree J

1. I likewise agree with the orders and reasons of the learned presiding judge.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Murphy & Tree JJ) delivered on 17 September 2013.

Associate:     

Date:  27 September 2013