Dansey and Dansey (No. 2) - [2021] FedCFamC1A 100

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Dansey & Dansey (No. 2) [2021] FedCFamC1A 100

Appeal from:
Dansey & Dansey [2021] FamCA 462;

Dansey & Dansey (No. 2) [2021] FamCA 631

Appeal number(s): EAA 73 of 2021;
NAA 5 of 2021

File number(s): SYC 3614 of 2021

Judgment of: TREE, RIETHMULLER & CAMPTON JJ

Date of judgment: 22 December 2021

Catchwords: FAMILY LAW – APPEAL – COSTS – Where the mother’s appeals were dismissed by the Full Court – Where the mother seeks that there be no order as to costs, or alternatively, costs be ordered as agreed or assessed – Where the father seeks his party/party costs – Financial circumstances – Letter of offer – Wholly unsuccessful – Circumstances justify an order for costs – Mother to pay the father’s costs in a fixed sum – Where no order as to costs of the ICL.

Legislation:
Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04

Number of paragraphs: 26

Date of last submission/s: 10 December 2021

Date of hearing: By way of written submissions

Place: In Chambers

Counsel for the Appellant: Mr Todd

Solicitor for the Appellant: Burgess Family Law

Counsel for the Respondent: Dr Barnett

Solicitor for the Respondent: Pearson Emerson Family Lawyers

Counsel for the Independent Children's Lawyer: Mr Gould

Solicitor for the Independent Children's Lawyer: G & D Lawyers
ORDERS

EAA 73 of 2021;
NAA 5 of 2021
SYC 3614 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS DANSEY

Appellant

AND:
MR DANSEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

TREE, RIETHMULLER & CAMPTON JJ

DATE OF ORDER:

22 DECEMBER 2021

THE COURT ORDERS THAT:
1.The appellant pay the respondent’s costs in the sum of $15,398.15 within 28 days.
2.The Independent Children’s Lawyer’s application for costs is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dansey & Dansey has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, RIETHMULLER & CAMPTON JJ:
INTRODUCTION

On 19 November 2021, for reasons then delivered, we dismissed an appeal brought by Ms Dansey (“the mother”) from interim parenting orders. At the hearing of the appeal on 3 November 2021, by consent we had dismissed…

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.

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Details

Case: [2021] FedCFamC1A 100
Decision Date

CaseChat Overview and Summary

The case of Dansey and Dansey (No. 2) involves an appeal by Ms Dansey (the mother) against the dismissal of her appeals from interim parenting orders and the primary judge’s refusal to stay those orders. The appeal was dismissed by the Full Court. The central issue before the court was the determination of costs between the parties. The mother sought that there be no order as to costs, or alternatively, that costs be paid within three months of being agreed or assessed, while the father sought his party/party costs. The Independent Children’s Lawyer sought an order that the parties equally bear his costs, or alternatively, that the mother bear those costs entirely.

The court considered the financial circumstances of the mother, who despite having a share portfolio worth over $120,000, relied mainly on Centrelink payments and child support. The mother had been wholly unsuccessful in both her appeals. The court also noted that the mother had offered to settle the appeal on terms considerably better than the outcome of the dismissal of her appeal. The court concluded that the circumstances justified an order for costs in favour of the father.

The court rejected the first and fourth options for the form of the costs order, which would have been assessed or fixed at $15,000, respectively. The court agreed with the mother's argument that many items claimed in the father’s costs schedule were not properly party/party costs. The court ordered the costs in the sum of $15,398.15, calculated by the mother. The court also dismissed the Independent Children’s Lawyer’s application for costs, finding it difficult to see how he added anything to what the father did to resist the appeal.

The final order was that the mother pay the father’s costs in the sum of $15,398.15 within 28 days, and that the Independent Children’s Lawyer’s application for costs be dismissed.

Orders