Director-General, Department of Communities (Child Safety Services) and Rolfston (Costs) - [2011] FamCAFC 23

FAMILY COURT OF AUSTRALIA

DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) & ROLFSTON (COSTS)

[2011] FamCAFC 23

FAMILY LAW - APPEAL – COSTS – Hague convention – where an appeal by the Central Authority was dismissed – costs sought by the mother against the Central Authority – whether the Central Authority has immunity from a costs order pursuant to the provisions of reg 7 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) and s 117AA of the Family Law Act 1975 (Cth) – whether the Central Authority asserted a meaning of the Regulations which was not reasonable given the terms of the Regulations – where the Central Authority was wholly unsuccessful in the appeal – order for the Central Authority to pay the mother’s costs.

Family Law Act 1975 (Cth) ss 4, 117 & 117AA
Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 7 & reg 16

A v GS and Ors (2005) 193 FLR 416
De L v Director-General, NSW Department of Community Services(No 2) (1997) 190 CLR 207
Director-General, NSW Department of Community Services and JLM (2001) FLC 93-090
LK v Director-General, Department of Community Services (2009) 237 CLR 582

APPELLANT:

Director-General, Department of Communities (Child Safety Services)

RESPONDENT:

Ms Rolfston

FILE NUMBER:

BRC

10566

2009

APPEAL NUMBER:

2010

DATE DELIVERED:

14 February 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

By way of written submissions

JUDGMENT OF:

May, O’Ryan and Strickland JJ

HEARING DATE:

By way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

13 April 2010

LOWER COURT MNC:

[2010] FamCA 264

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Parrott

SOLICITOR FOR THE APPELLANT:

Crown Law

COUNSEL FOR THE RESPONDENT:

Mr Kent SC

SOLICITOR FOR THE RESPONDENT:

Barry & Nilsson Lawyers

Orders

The appellant pay the respondent’s costs of and incidental to the appeal, including the costs incurred with respect to the matters identified in paragraph (2) of the orders made by the Full Court on 19 August 2010, such costs to be agreed or, failing agreement, to be assessed.

IT IS NOTED that publication of this judgment under the pseudonym Director-General, Department of Communities (Child Safety Services) & Rolfston (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 BRISBANE

Appeal Number: NA 54 of 2010
File Number: BRC 10566 of 2009

Director-General, Department of Communities (Child Safety Services)

Appellant

And

Ms Rolfston

Respondent

REASONS FOR JUDGMENT

Introduction

On 19 August 2010 we delivered our reasons for judgment and made orders dismissing an appeal by the Director-General, Department of Communities (Child Safety Services), acting as the State Central Authority for Queensland (“the Central Authority”). The Central Authority had appealed against orders made by Murphy J on 13 April 2010 dismissing the Central Authority’s application seeking the return of the child E born in September 2006 to the United States of America pursuant to the Family Law (Child Abduction Convention) Regulations…

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

AGLC: Director-General, Department of Communities (Child Safety Services) and Rolfston (Costs) [2011] FamCAFC 23
Case: [2011] FamCAFC 23
Decision Date: 14 February 2011

CaseChat Overview and Summary

The Director-General of the Department of Communities (Child Safety Services) appealed against a decision to award costs to Rolfston in proceedings related to child safety services. The matter was heard and determined by the Supreme Court of Queensland. The legal issues at hand revolved around the assessment and allocation of costs incurred in the appeal, particularly those related to specific matters identified in previous orders made by the Full Court on 19 August 2010.

The court meticulously examined the nature and scope of the costs incurred by Rolfston in response to the appeal. It considered the Full Court's previous orders and the necessity to address any outstanding disputes regarding the costs. The court determined that the appellant was liable to pay the respondent's costs of and incidental to the appeal, including those costs associated with specific matters outlined in the previous orders. The court emphasised the importance of reaching an agreement on the costs or, in the absence of such agreement, the need for a formal assessment.

The court ordered that the appellant pay the respondent's costs of and incidental to the appeal, including those costs relating to the matters identified in the Full Court's orders. The costs were to be agreed upon by the parties, with the option for formal assessment if an agreement could not be reached. This decision ensures that the respondent is fairly compensated for the expenses incurred in the appeal process.

Orders

Orders of the court

The appellant pay the respondent’s costs of and incidental to the appeal, including the costs incurred with respect to the matters identified in paragraph (2) of the orders made by the Full Court on 19 August 2010, such costs to be agreed or, failing agreement, to be assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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