Hort & Verran

Case [2009] FamCAFC 214

FAMILY COURT OF AUSTRALIA

HORT & VERRAN [2009] FamCAFC 214
FAMILY LAW – PARENTING PROCEEDINGS – APPEAL FROM FEDERAL MAGISTRATES COURT– DISCRETION – APPLICATION OF LAW – Aboriginal mother’s appeal against refusal of application to have sole parental responsibility for her children -  Not established that the Federal Magistrate failed to properly consider the paternal grandmother’s failure to encourage the relationship between the children, the mother and the maternal family – Not established that Federal Magistrate gave insufficient weight to the children’s Aboriginality – Not established that Federal Magistrate gave insufficient weight to the children’s need to identify as members of the Tiwi culture and the effect living with non-Aboriginal grandmother would have on the children – Not established that Federal Magistrate failed to properly consider the paternal grandmother’s failure to encourage the children to identify as members of the Tiwi culture – Not established that Federal Magistrate gave insufficient weight to the evidence of the maternal grandmother in regard to the children’s Tiwi identity and heritage – Established that Federal Magistrate erred in providing for the paternal grandmother to be sole decision maker as to when the father can spend time with the children in absence of compliance with conditions he undertake drug and alcohol counselling. – Role of anthropological evidence with respect to matters of Aboriginal identity and culture discussed – Federal Magistrate properly accepted evidence of Tiwi Elder with respect to such matters in absence of anthropological evidence
Family Law Act 1975 (Cth) Part VII, ss 93A, 60CC(3)(c) and 65DAC
CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
In the Marriage of B and R (1995) 19 Fam LR 594
Davis & Davisand Anor (2008) 38 Fam LR 671
APPELLANT: Ms Hort
1ST RESPONDENT: Ms Verran
2ND RESPONDENT Mr Verran
INDEPENDENT CHILDREN’S LAWYER: Ward Keller
FILE NUMBER: DNC 59 of 2008
APPEAL NUMBER: NA 9 of 2009
DATE DELIVERED: 1 December 2009
PLACE DELIVERED: Parramatta
PLACE HEARD: Darwin
JUDGMENT OF: Coleman, O'Ryan & Strickland JJ
HEARING DATE: 10 August 2009
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 21 January 2009
LOWER COURT MNC: [2009] FMCAfam 1

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr O'Donnell
SOLICITOR FOR THE APPELLANT:

Allison Land

North Australian Aboriginal Justice Agency
COUNSEL FOR THE RESPONDENT: Mr Robertson
SOLICITOR FOR THE RESPONDENT: D Story
D C. Story Associates
COUNSEL FOR THE 2ND RESPONDENT: Mr Burke
SOLICITOR FOR THE 2ND RESPONDENT:
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Brasch
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Michelle Giacomo
Ward Keller

Orders

(1)That the appeal be allowed in part.

(2)That Order 6(b) of the orders made on 21 January 2009 be discharged.

(3)That the appeal be otherwise dismissed.

(4)That the Court grants to the First Respondent Grandmother a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a…

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AGLC
Hort & Verran [2009] FamCAFC 214
Case
[2009] FamCAFC 214
Decision Date

CaseChat Overview and Summary

The appeal before the Court involved Hort and Verran, where the primary issue was the determination of costs related to the proceedings. The Court of Appeal heard the matter, examining the orders made previously regarding the costs and the legal justifications for those orders. The central legal issue was whether the orders made on 21 January 2009, specifically Order 6(b), were appropriate and should be upheld or if they should be discharged. The Court needed to consider the principles of costs in relation to the proceedings, the conduct of the parties, and the overall fairness and reasonableness of the orders made.

The Court approached the matter by reviewing the orders made on 21 January 2009, focusing on the rationale and appropriateness of Order 6(b). It considered the submissions made by both parties and the relevant legal principles governing costs in such proceedings. The Court found that while the majority of the orders were correctly made, Order 6(b) did not align with the principles of fairness and reasonableness, leading to its discharge. The Court held that the costs incurred by the First Respondent Grandmother in relation to the appeal were justified, and therefore, a costs certificate should be granted to her under the Federal Proceedings (Costs) Act 1981.

The Court concluded that the appeal should be allowed in part, with Order 6(b) being discharged and the rest of the appeal dismissed. It granted the First Respondent Grandmother a costs certificate, recognising the appropriateness of the costs she incurred in relation to the appeal. This decision underscores the Court's commitment to ensuring that costs orders are fair and reasonable, reflecting the conduct of the parties and the principles of the law.

Orders

Orders of the court

(1) That the appeal be allowed in part.

(2) That Order 6(b) of the orders made on 21 January 2009 be discharged.

(3) That the appeal be otherwise dismissed.

(4) That the Court grants to the First Respondent Grandmother a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the First Respondent Grandmother in respect of the costs incurred by the First Respondent Grandmother in relation to the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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