Honan and Nourse (No. 2)

[2007] FamCA 1691

FAMILY COURT OF AUSTRALIA

HONAN & NOURSE (NO. 2) [2007] FamCA 1691

FAMILY LAW – COSTS – Applications by both parties and Independent Children’s Lawyer for costs certificate pursuant to s 10(3) of Federal Proceedings (Costs) Act 1981 – Judge previously presided over trial between parties – Matter listed for trial before same judge – Disqualification of judge – Adjournment not due to neglect, default or improper act of any party – Administrative oversight of the court – Order: costs certificate issued in favour of parties and Independent Children’s Lawyer

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth) s 10(3)

APPLICANT: Mr Honan

RESPONDENT: Ms Nourse

INDEPENDENT CHILDREN’S LAWYER: Mr Pickhaver

FILE NUMBER: ADF 4692 of 2001

DATE DELIVERED: 20 September 2007

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Burr J

HEARING DATE: 20 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs Read

SOLICITOR FOR THE APPLICANT: Dixon Gallasch

COUNSEL FOR THE RESPONDENT: Mr Treadrea

SOLICITOR FOR THE RESPONDENT: Jo-Anne N Milen & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Pickhaver

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: J Richard Croft

Orders

1. I therefore Order that a Costs Certificate issue in favour of each of the parties and the Independent Children’s Lawyer for today’s proceedings in the sum of $550.00 each.

IT IS NOTED that publication of this judgment under the pseudonym Honan & Nourse is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 4692  of 2001

MR HONAN  

Applicant

And

MS NOURSE  

Respondent

REASONS FOR JUDGMENT

THE APPLICATION

1. I have before me for determination an application by each of the parties and the Independent Children’s Lawyer for a Costs Certificate pursuant to the Federal Proceedings (Costs) Act 1981. Specifically their application is pursuant to Section 10(3) of that statute.

BACKGROUND

1. The application arises as a consequence of an Order I made this day disqualifying myself from the hearing of any further applications in this matter, but particularly the trial of these proceedings.

2. In 2004 and 2005 I presided over a trial between the parties pertaining to parenting issues of their child … (“[the child]”) born in December 2000.  On 3 March 2005 I delivered my reasons.

3. On 30 September 2005 the father filed a further application in this Court seeking to re-litigate parenting matters.  Subsequently, without any enquiry having been made of me or my Associate by anybody within the Registry, the matter was listed for trial to commence before me today (5^th September 2007).

4. When I became aware of the listing before me, I arranged for the matter to be listed on a directions basis on Tuesday 28 August 2007 as I anticipated that there was an issue for determination as to whether or not I ought to be disqualified from conducting a further trial of the proceedings.  A letter was despatched from this Court on 23 August 2007, advising each of the parties and the Independent Children’s Lawyer of the directions hearing set for 10.00 am on Tuesday 28 August 2007.

5. At that directions hearing Ms Milen appeared for the mother and Mr Pickhaver for the Independent Children’s Lawyer.  There was no appearance by Mrs Read for the father.  I arranged for Mrs Read to be contacted by telephone in Court during the conduct of the directions hearing.  She indicated to me that she had not received the letter but acknowledged that she had not cleared her Court box for some three working days.  Accordingly I adjourned the matter to this morning for consideration of the question as to whether or not I was disqualified from further hearing any matter in issue between these parties and then whether or not there was an issue for determination pursuant to the principles of Rice v Asplund (1979) FLC 90-725.

6. All parties agreed though that I needed to determine the issue of disqualification first before addressing the second issue.

7. Having determined that I should indeed be disqualified from presiding over any further proceedings between the parties, this application now arises.

THE STATUTE

1. Section 10(3) is expressed in the following terms:-

   “Subject to this Act, where:

   (a)the hearing of any proceeding in a court to which this section applies is discontinued and a new hearing is ordered; and

   (b)the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings,

   the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.”

2. Sub-section (3)(a) has been satisfied in that my Orders were for the adjournment of the proceedings and for them to be relisted before another Judge at the first available opportunity.

3. In my view sub-section (3)(b) is also satisfied in that the adjournment to a new date is “not attributable to the neglect, default or improper act of any party to the proceedings …”.

4. Quite simply the proceedings should not have been listed for hearing before me and were so as a result of administrative error or oversight.  If I had been alerted in sufficient time I could have arranged for a listing before another Judge and the hearing of the matter before me on the disqualification point, most certainly, would not have been needed and would not have been convened.

5. Thus I am satisfied that the costs of the parties and the Independent Children’s Lawyer today have been thrown away through no fault of their own.

COSTS SOUGHT

1. By letter dated 17 September 2007, Counsel for the father seeks an amount of $960.00.  Appropriately he acknowledges that his preparation for the Rice and Asplund argument will not be wasted and those costs have not been thrown away.

2. By letter dated 18 September 2007, Counsel for the mother also seeks an amount of $960.00 and makes a similar concession that costs associated with the preparation of the Rice and Asplund argument have not been wasted or thrown away.

3. By letter dated 20 September 2007, Counsel for the Independent Children’s Lawyer seeks an amount of $1,320.00.

4. In my view, it is appropriate to award the same amount to each of the parties and the Independent Children’s Lawyer.  That amount I deem ought appropriately to be $500.00 plus GST of $50.00, being a total for each of $550.00.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr

Associate 

Date:  20 September 2007