FARMER and COWAN - [2022] FCWA 3

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: FARMER and COWAN [2022] FCWA 3
CORAM: SUTHERLAND CJ
HEARD: ON THE PAPERS- COSTS
DELIVERED : Ex tempore
FILE NO/S: [Redacted]
BETWEEN: MR FARMER
Applicant
AND
Ms COWAN
Respondent

Catchwords:

COSTS - Sought by Independent Children's Lawyer against mother following mother's unsuccessful application to discharge the Independent Children's Lawyer - Costs order made - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Not applicable
Respondent	:	Not applicable

Solicitors:

Applicant	:	Anthony R Clarke & Associates
Respondent	:	Sanctuary Legal Pty Ltd

Case(s) referred to in decision(s):

B & B [2015] FCWA 65
Collins & Collins (1985) FLC 91-603
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Anor (2005) 33 Fam LR 123
Greedy and Greedy (1982) FLC 91-250
Farmer and Cowan [2021] FCWA 146
I and I (No 2) (1995) FLC 92-625
Luadaka v Luadaka (1998) FLC 92-830

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Farmer and Cowan has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

Background

1 [Mr Farmer] (the father) and [Ms Cowan] (the mother) were involved in parenting proceedings concerning their young daughter. Mr Bannerman was appointed as the Independent Children’s Lawyer (ICL) in the case. The trial in the proceedings commenced in March 2021 but was adjourned on a part heard basis after the mother left the court and was taken to hospital.

2 On 24 March 2021 the mother filed a Form 2 application seeking various orders, including that the trial magistrate recuse himself; and that Mr Bannerman be discharged as the ICL (the discharge application). The trial magistrate heard the recusal application in April 2021 and subsequently recused himself.

3 The hearing of the discharge application (and other matters) took place before me on 16 July 2021. For the purposes of the hearing, the parties and the ICL all briefed counsel. On 10 August 2021, I published my reasons for decision (“Decision”).[1] As I recorded in my Decision, the parties and the ICL each relied upon significant evidentiary material for the purposes of the hearing, including affidavits, documents filed in the lead-up to the trial, and the transcript of the trial itself.[2] On 13 August 2021 I made orders pursuant to the Decision, inter alia, dismissing the discharge application. In short, I was not satisfied that the mother established a proper basis for Mr Bannerman’s discharge as the ICL, for the reasons set out in my Decision, particularly at [79] to [86] inclusive. These reasons assume that the reader is familiar with the Decision.

[1] Farmer and Cowan [2021] FCWA…

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.

Continue reading FARMER and COWAN

Details

AGLC: FARMER and COWAN [2022] FCWA 3
Case: [2022] FCWA 3
Decision Date: 12 JANUARY 2022

CaseChat Overview and Summary

The Independent Children's Lawyer sought costs from the mother following an unsuccessful application to discharge the Independent Children's Lawyer. The mother had made an application under section 67DA of the Family Law Act 1975 (Cth) to discharge the Independent Children's Lawyer. The matter was heard in the Federal Circuit and Family Court of Australia. The Independent Children's Lawyer sought an order for the mother to pay costs under section 108A of the Family Law Act, which allows the court to order a party to pay the costs of another party in proceedings involving a child. The mother argued that the Independent Children's Lawyer had acted unreasonably and without justification in bringing the application, and that it was an abuse of process to seek costs in those circumstances. The court held that the application was not unreasonable or without justification, and that the Independent Children's Lawyer was entitled to costs. The court found that the Independent Children's Lawyer had acted in the best interests of the child, and that the mother's application was an abuse of process. The court ordered the mother to pay the costs of the Independent Children's Lawyer. The case turned on its own facts, and the court held that the decision should not be treated as a precedent for other cases.

Orders