Harries and Harries (Costs)

[2012] FamCAFC 28

FAMILY COURT OF AUSTRALIA

HARRIES & HARRIES (COSTS) [2012] FamCAFC 28

FAMILY LAW – APPEAL – Costs of unsuccessful appeal – Where the unsuccessful appellant father is now deceased – Where although no correspondence received as to the current position of the father’s estate, judgment can be given as the application for costs was that of the mother – Where while the appeal was dismissed there are no justifying circumstances to make an order for costs – Where the appeal was not without merit and involved serious consequences for the parties and the children.

Family Law Act 1975 (Cth) s 94; s 117
Family Law (Child Abduction Convention) Regulations 1986 (Cth) r 14(2)
Family Law Rules 2004 (Cth)

Farland & Farland (Costs) [2010] FamCAFC 28
Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v Fish & Anor (2005) 33 Fam LR 123
Penfold v Penfold (1980) 144 CLR 311

APPELLANT: Mr Harries

RESPONDENT: Mrs Harries

FILE NUMBER: SYC 4565 of 2010

APPEAL NUMBER: EA 6 of 2011

DATE DELIVERED:	29 February 2012
PLACE DELIVERED:	Brisbane

PLACE HEARD: Sydney

JUDGMENT OF: Coleman, May & Johnston JJ

HEARING DATE: By way of written submissions

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 10 December 2010

LOWER COURT MNC: [2010] FamCA 1129

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT: Mr Livingstone

SOLICITOR FOR THE RESPONDENT: Watson & Watson Solicitors

Orders

1. There be no order as to costs of the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harries & Harries has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 6 of 2011
File Number: SYC 4565 of 2010

Mr Harries

Appellant

And

Mrs Harries

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 24 May 2011 the Full Court dismissed the father’s appeal against the orders of Le Poer Trench J made 10 December 2010. In those orders his Honour declined to make an order for the return of the parties children, K and C, then aged 3 and a half and 13 months, to Canada pursuant to the Family Law (Child Abduction Convention) Regulations1986 (Cth) (“the Regulations”). The trial judge was satisfied that such return would expose the children to grave risk as defined in the Regulations.

2. In dismissing the appeal, orders were made granting the parties liberty to file written submissions as to costs of and incidental to the appeal. Both parties filed submissions in accordance with the orders. For reasons which are explained later the mother’s submissions in reply, although received and considered by us, have not been filed.

3. The mother asks that an order for costs be made in her favour on a party/party basis. The father opposed the mother’s application for costs, and asked that each party pay their own costs.

4. The father is now deceased.

Background

1. The mother…