Farland and Farland (Costs)

[2010] FamCAFC 28

FAMILY COURT OF AUSTRALIA

FARLAND & FARLAND (COSTS) [2010] FamCAFC 28

FAMILY LAW - APPEAL – COSTS – Appeal has little prospects of success – Costs order against the appellant will be a hardship – Requiring the respondent to pay his own costs will cause a hardship – Parties ought exercise great care in choosing to conduct an appeal – Appellant to pay the respondent’s costs of the appeal

APPLICANT: Ms FARLAND

RESPONDENT: Mr FARLAND

APPEAL NUMBER: NA 79 of 2009

FILE NUMBER: BRC 7305 of 2008

DATE DELIVERED: 19 February 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Warnick J

HEARING DATE: 19 February 2010

LOWER COURT JURISDICTION: Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE: 8 October 2009

LOWER COURT MNC: [2009] FMCAfam 1215

REPRESENTATION

APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Hodges

SOLICITOR FOR THE RESPONDENT: Kerry Barnes Lawyers

Orders

1. That the mother pay the father’s costs of and incidental to the appeal as agreed and in default of agreement as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Farland and Farland (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

APPEAL NUMBER: NA79 of 2009
FILE NUMBER: BRC 7305 of 2008

Ms FARLAND

Applicant

And

Mr FARLAND

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I intend to order that the mother pay the father’s costs of and incidental to the appeal as agreed and in default of agreement as assessed.  In arriving at that decision I have regard, in a broad sense, to what the parties have put before me in relation to their financial affairs.  An order for costs on the mother, I am satisfied, will cause substantial hardship.  Even if I accept what the mother says or adds to the picture of the father’s financial circumstances, namely, that he has an annual income a bit higher than was suggested and has a large superannuation, I also accept that requiring him to meet his own costs in relation to the appeal would cause substantial hardship for him.

2. In my view of the factors that I have to take account of as set out in the Act, the telling factors are the nature of the appeal and the result.  The appeal had little prospect of success.  It raised arguments that ought to have been recognised as poor, given what happened in the proceedings before the Federal Magistrate and, in the end, the arguments amounted to no more than a challenge to aspects of the orders for which there were clearly reasons that could be argued either way.

3. An appeal is a second bite at the cherry, so to speak.  The parties had issues.  They took those issues to court.  They received a result and the reasons for that result, and parties ought exercise the greatest care before choosing to prolong litigation and challenge the result of proceedings below.  It is for those reasons that, notwithstanding a real reluctance to impose an order for costs on the mother, I do so.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick

Associate: 

Date:  1 March 2010