DJC & SJS

[2006] FamCA 1280

FAMILY COURT OF AUSTRALIA

DJC & SJS [2006] FamCA 1280

APPEAL – CONTACT – Interim order sought – The trial judge refused the father’s application for an increase in existing interim contact between himself and his daughter, pending a substantive hearing on contact issues – Her Honour concluded that in accordance with the previous reasons for judgment given in this case, DJC and SJS[2005] FamCA 1006, it would be inappropriate to embark on a new hearing – Application for the Independent Child’s Lawyer to be dismissed from the suit refused – There being no discernable error in her Honour’s approach the appeal is dismissed – The father to pay Independent Child Lawyer's costs in the sum of $1606.

Family Law Act 1975 (Cth)

Penfold v Penfold (1980) 144 CLR 311

APPELLANT FATHER: DJC

RESPONDENT MOTHER: SJS

INDEPENDENT CHILDREN’S LAWYER: G D HEMSLEY

FILE NUMBER: ADF 4779 of 2000

APPEAL NUMBER: SA 28 of 2006

DATE DELIVERED: 25 September 2006

PLACE DELIVERED: Adelaide

JUDGMENT OF: BRYANT CJ, KAY & BOLAND JJ

HEARING DATE: 26 September 2006

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 6 March 2006

LOWER COURT MNC: [2006] FamCA 497

REPRESENTATION

COUNSEL FOR THE 

APPELLANT FATHER:

IN PERSON

COUNSEL FOR THE 

RESPONDENT MOTHER:

IN PERSON

INDEPENDENT CHILDREN'S LAWYER: MR BOWLER

Orders

1. That the appeal be dismissed.

2. That the father pay the costs of the child representative in the sum of $1606 in relation to the dismissal of the appeal.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 28  of 2006
File Number: ADF 4779 of 2000

DJC

Appellant Father

And

SJS

Respondent Mother

REASONS FOR JUDGMENT

1. KAY J: In this matter we will provide reasons for judgment in accordance with the provisions of section 94(2A) of the Family Law Act 1975 (Cth). We are of the view that the appeal should be dismissed. It does not raise any question of general principle.

2. The appeal is against orders made by Dawe J on 6 March 2006, whereby her Honour dismissed two applications brought by the appellant father; namely, that he be granted an increase in the existing interim contact to his daughter S pending the hearing and determination of proceedings before the Court awaiting trial on issues of contact and, secondly, that the independent children's lawyer, then known as the child representative, be dismissed from the suit.

3. Her Honour dealt with the applications in a well-reasoned, careful judgment delivered on 6 March 2006.  We are unable to find any fault with her Honour’s judgment.  Her Honour identified the appropriate approach when dealing with interim contact issues.  Her Honour determined that she would not deal with any of the disputed factual issues but would rely entirely upon the material, insofar as it was either undisputed or it came from the only expert witness.  She indicated that she was relying entirely upon the evidence of the child's wishes, albeit that evidence was somewhat out of date, it being the only admissible evidence that was before her Honour at the time.

4. As her Honour indicated, in accordance with the previous reasons for judgment given in this case in Appeal No SA 20 of 2005 [2005] FamCA 1006 delivered 26 October 2005, it would be inappropriate for the court to embark upon some other form of hearing.

5. Her Honour also dealt with the complaints relating to the removal of the children's representative and concluded that there was no substance in them, and we see no error in the manner in which her Honour approached that matter.  Accordingly, the order that I would propose is that the appeal be dismissed.

6. BRYANT CJ:   Yes, I agree with the reasons of his Honour and the orders that he proposes and I have nothing further to add.

7. BOLAND J:   I too agree with the reasons of Kay J and the orders that he proposes and have nothing further to add.

Discussion

1. BRYANT CJ:   There is an application by Mr Bowler on behalf of the Legal Services Commission that the unsuccessful appellant, namely the father, pay costs of $1660 inclusive of GST, which he says are counsel fees only.  The father opposes the making of the order, largely on the basis of his inability to meet the costs.

2. Section 117 of the Act governs the question of costs and states that each party shall bear their own costs unless the court otherwise orders.

3. The High Court, in Penfold v Penfold (1980) 144 CLR 311, has said that there is no onus one way or the other and it is a matter for the court in each individual case to consider, having regard to the matters in section 117(2A), whether it is appropriate to make an order for costs.

4. This is the second appeal that the husband has brought, and has been unsuccessful in, on the same issue.  The Full Court determined his appeal against the decision of Murray J, which included this issue.  Whilst his appeal against part of Murray J's orders was successful, it was clear that, insofar as the application to vary the interim order was concerned, part of the appeal was unsuccessful.  Whilst he did not receive a costs order in respect of the successful part of the appeal, nor was one made against him in respect of the unsuccessful part, the appeal against the decision of Dawe J, which we have just dealt with, was essentially relating to the same matter - that is, the interim order for contact - and on the second occasion the father has been unsuccessful in that appeal.

5. The Legal Services Commission is providing representation for the children, which is vitally important in these proceedings, particularly as both parties are unrepresented.  Their finances are not finite and, we are told, the cap has already been reached.  These parties have no doubt consumed a great amount of the funds available to them and other litigants, and that is particularly so in relation to the appeals brought by the father.  Not only has he sought a variation of orders at first instance, which have been unsuccessful, but he has appealed them.

6. Given that the Legal Services Commission, in addition, prepared the appeal books in order to assist the court and to progress the matter, in my view it is entirely appropriate that the father, who is the unsuccessful appellant for the reasons that I have outlined, should on this occasion bear the costs of the Legal Services Commission and I would order that the father pay the costs of the child representative in the sum of $1606 in relation to the dismissal of the appeal.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kay

Associate: 

Date:  27 November 2006