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

2011

APPEAL NUMBER:

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

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

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.
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…

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 Buckley & Buckley

Details

AGLC: Buckley & Buckley [2013] FamCAFC 150
Case: [2013] FamCAFC 150
Decision Date

CaseChat Overview and Summary

In Buckley & Buckley, the mother, Ms Buckley, appealed against orders made by Bell J on 21 June 2013, which were related to parenting arrangements. The appeal was initially filed on 5 August 2013 and later amended on the same date. However, during the hearing, Ms Buckley withdrew the appeal, explaining that a parenting agreement had been entered into on 17 August 2013, rendering the appeal unnecessary. Despite the father's counsel's concession that the issue of the agreement was not raised with the mother's legal representatives, he argued that it was open to the mother to withdraw her appeal. Ms Buckley opposed any order for costs, citing her financial circumstances, but the court found that the circumstances warranted such an order.

The legal issues in the case involved whether an order for costs was justified given the mother's withdrawal of the appeal and her financial circumstances. The court considered the mother's conduct in proceeding with the appeal despite it being rendered nugatory by the parenting agreement. Strickland J, delivering the judgment, noted that the mother's impecuniosity did not preclude an order for costs if otherwise warranted. The Full Court agreed with the presiding judge's reasoning and orders.

The Full Court of the Family Court of Australia dismissed the appeal and ordered that the mother pay the father's costs of and incidental to the appeal, calculated on a party/party basis from 18 August 2013, to be assessed in default of agreement. The Independent Children's Lawyer made no submissions regarding the withdrawal of the appeal or any application for costs.

Orders