Hollier and Harne (No 3)
[2009] FamCAFC 242
•11 December 2009
FAMILY COURT OF AUSTRALIA
| HOLLIER & HARNE (NO 3) | [2009] FamCAFC 242 |
| FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – Leave to withdraw granted – Independent Children’s Lawyer sought costs – applicant to pay fixed amount of Independent Children’s Lawyer’s costs |
| APPLICANT: | Ms HOLLIER |
| RESPONDENT: | Mr HARNE |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Madden |
| APPEAL NUMBER: | NA | 82 | of | 2009 |
| FILE NUMBER: | TVC | 1005 | of | 2008 |
| DATE DELIVERED: | 11 December 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Warnick J |
| HEARING DATE: | 11 December 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 10 October 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 1512 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Middleton |
| SOLICITOR FOR THE RESPONDENT: | Journey Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms J.M. Madden |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Madden Solicitors |
Orders
Leave be granted to withdraw the Application in an Appeal filed 2 November 2009.
The applicant Ms Hollier pay the costs of the Independent Children’s Lawyer of and incidental to the application filed 2 November 2009 fixed in the sum of $300, such payment to be made within four (4) months of the date of this order.
IT IS NOTED that publication of this judgment under the pseudonym Hollier & Harne (No 3) 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: NA82 of 2009
FILE NUMBER: TVC 1005 of 2008
| Ms HOLLIER |
Applicant
And
| Mr HARNE |
Respondent
Ex Tempore
REASONS FOR JUDGMENT
In this matter the mother seeks leave to withdraw her application filed 2 November 2009, and I grant that leave. The first thing that I wish to observe is that no costs are sought on behalf of the father. This is a matter in which there is probably very little goodwill, if any, between the parties, judging even from the little I know of it. I think gestures, such as the father has made through Mr Middleton are entitled to credit in the relationship between the parties and are a step moving from the father, in my view, towards trying to improve the relationship between the father and the mother. Had Mr Middleton sought costs, then he would have received some of them.
Ms Madden, for the independent children's lawyer, seeks costs. In my view she ought have them. If this application had been filed on the mother's behalf by a lawyer and the result that has come about occurred, in my view there is no doubt that an order for costs was highly likely to follow. While no doubt all concerned in the court system understand the difficulties of a litigant in person, when they act unwisely and rashly, there is no particular logic in saying that they should be better off in relation to questions of costs than if they were represented.
I think that I ought make an order for costs to reflect the fact that this was an entirely unnecessary proceeding and it was never going to be of any benefit to anybody. I accept Ms Madden's estimate of costs as certainly not excessive and apparently at least reasonable on its face. However, I intend to reduce the amount that I order the mother pay, in reflection of what she says of her financial circumstances and in an attempt to make the order, whilst I am sure of some impact upon her, not an excess of hardship.
I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick
Associate:
Date: 21 December 2009
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