C & C (Costs)

[2006] FamCA 258

[2006] FamCA 258

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE      No. NA64 of 2005

(No. TVM2245 of 2004)

BETWEEN:
  C

Appellant Father

AND:
  C

Respondent Mother

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

(Costs)

Dates of Hearing:              By way of written submissions

Date of Judgment:            6 April 2006

C and C  NA64 of 2005 (TVM2245 of 2004)

Heard:             By way of written submissions
Delivered:        6 April 2006

COSTS – Application for costs by the mother and the child representative based on the failure of the father’s appeal – The child representative’s Legal Aid funding disregarded – The father is in a stronger financial position than the mother, as the mother was in receipt of legal aid for the appeal and the father is employed on a full-time basis – While no express findings as to whether the appeal patently lacked prospects, the nature of the proceedings and the outcome of them are the factors of most significance with regard to the issue of costs – Father to pay the costs of the child representative and the mother.

1. On 3 February 2006, for reasons which I then gave, I dismissed an appeal by the father against orders made by Federal Magistrate Coker in July 2005.  Those orders related to the residence of and contact with L, the child born in October 2000, of the parties.

2. At the same time as I made the order that the appeal be dismissed, I made orders providing for applications to be made in respect of costs by way of written submissions.  Each of the mother and the child representative have sought an order that the father pay costs of and incidental to the appeal.

Submissions of the child representative

1. The child representative argued that the father is in full-time employment and had privately funded his legal representation on appeal.  He also asserted that the Federal Magistrate had been strongly critical of the father’s conduct in relation to the original proceedings, but I do not consider that, having regard to the nature of that criticism and the fact that it was in the trial and not the appeal proceedings, it is relevant to the current issue.

2. The child representative also referred to the source of its funding from Legal Aid Queensland:

   “…which has significant, though finite, financial resources.…”

3. In this regard no reference was made to the terms of section 117(5) , which are as follows:

   “(5)   In considering what order (if any) should be made under subsection (2) in proceedings in which a child representative has been appointed, the court must disregard the fact that the child representative is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.”

4. The child representative, no doubt in anticipation of a submission on behalf of the father, also referred to the terms of section 117(4)(b) which are:

   “However, in proceedings in which a child representative has been appointed, if:

   (a)     …

   (b)     the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the child representative;

   the court must not make an order under subsection (2) against that party in relation to the costs of the child representative.”

5. The child representative submitted that it was not reasonably open for the father to suggest that he would suffer financial hardship within the meaning of the subsection if ordered to pay the child representative’s costs.

6. The only other submission made on behalf of the child representative was that the father was wholly unsuccessful in the appeal and that:

   “…this being an appeal rather than proceedings at first instance, the Court would more readily entertain an application to award costs.…”

Submissions on behalf of the mother

1. The mother was in receipt of legal aid for the appeal.  Reference was made to the mother’s financial circumstances, her income being primarily from Centrelink benefits.  The father’s financial circumstances were referred to in terms similar to those in the submission of the child representative.

2. Finally, the mother also referred to the lack of success of the father in the appeal and the nature of that proceeding, as opposed to a trial.

Submissions on behalf of the father

1. The father recognised “significant funding issues for the Legal Aid office…”.  Again, no reference was made to the terms of section 117(5).

2. It was pointed out that the mother was “not out of pocket financially” with respect to the proceedings.

3. Some assertions of fact with regard to the father’s financial circumstances were set out, confirming his employment as a carpenter on a full-time basis, asserting that his net interest in real property was $37,500, and that he had no other assets of significance.  Reference was also made to amounts borrowed by the husband to meet legal costs.

4. Some of the balance of the submissions on behalf of the father seeks to revisit merits of his case, both at trial and on appeal, but in my view, any assessments of the merits of the appeal ought be confined to the arguments raised on appeal and dealt with in my reasons delivered on 3 February 2006.

5. Finally, reference is also made to continuing issues of concern about the welfare of the child, but I do not consider it appropriate to have regard to what is said in that respect.

Conclusion

1. I disregard the fact that the child representative is funded under a Legal Aid scheme or service.

2. I have regard to what is said of the comparative financial circumstances of the parties and approach the matter by accepting for present purposes what is said by the father of his financial position.

3. As to the merits of the appeal, I did not conclude that it was an appeal which patently lacked prospects, nor that it was one in which there was a fine balance between success and failure.  However, the ultimate comment on merit is that the appeal was dismissed.  In my view the nature of the proceedings and the outcome of them are the factors of most significance with regard to the issue of costs and the father ought pay the costs of each of the child representative and the mother.

ORDERS

1. That the father pay the costs of the child representative and the costs of the mother of and incidental to the appeal as agreed and in default of agreement, as assessed.

   I certify that the preceding 18 paragraphs

   are a true copy of the Reasons for Judgment

   herein of the Honourable Justice Warnick.

   ………………………………….
     Associate

   Date:  6 April 2006