Jesson & Garrick

[2023] FedCFamC1A 135

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Jesson & Garrick [2023] FedCFamC1A 135

Appeal from:	Jesson & Garrick [2023] FedCFamC2F 252
Appeal number(s):	NAA 35 of 2023
File number(s):	BRC 9687 of 2020
Judgment of:	RIETHMULLER J
Date of judgment:	8 August 2023
Catchwords:	FAMILY LAW – APPEAL – COSTS – Where the appellant withdrew their appeal – Where respondent and Independent Children’s Lawyer sought costs against the appellant – Where all parties are funded by legal aid – No order as to costs – No matters of principle.
Legislation:	Family Law Act 1975 (Cth) s 117
Number of paragraphs:	6
Date of hearing:	8 August 2023
Place:	Parramatta
Counsel for the Appellant:	Ms Fraser
Solicitor for the Appellant:	McVittie Legal
Counsel for the Respondent:	Ms Davison
Solicitor for the Respondent:	Berck Solicitors
Counsel for the Independent Children’s Lawyer:	Mr Linklater-Steele
Solicitor for the Independent Children’s Lawyer:	C M Bint Family Lawyers

ORDERS

NAA 35 of 2023
BRC 9687 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS JESSON

Appellant

AND:

MR GARRICK

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:	RIETHMULLER J
DATE OF ORDER:	8 AUGUST 2023

THE COURT ORDERS THAT:

1.There be no order as to costs.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE
REASONS FOR JUDGMENT

RIETHMULLER J:

1. On 7 August 2023, the afternoon prior to the commencement of the appeal, the solicitor for the appellant contacted chambers advising the Court of their instructions to withdraw the appeal, and subsequently filed a Notice of Discontinuance on 10 August 2023. The respondent and the Independent Children’s Lawyer seek orders for costs pursuant to section 117 of the Family Law Act 1975 (Cth).

2. All three parties in this case have the benefit of grants from Legal Aid; the appellant from Legal Aid New South Wales, and the respondent and Independent Children’s Lawyer from Legal Aid Queensland. As a result, the actual costs incurred by the parties are modest, around $4,000 for the respondent and the Independent Children’s Lawyer. That the appellant and the respondent have received legal aid demonstrates neither of them have any significant financial resources, otherwise they would not have been eligible for a grant of aid for the appeal. It was not put that there are any real financial resources of either of the parties.

3. The underlying case presented an unusual set of circumstances and a difficult matter for the primary judge to navigate at first instance. The case concerned two very young children who are now residing with the father, who is cohabiting with the mother’s sister. There are issues concerning mental health relating to both the mother’s sister, the mother and the maternal grandmother. The father, during the period between separation and trial, had moved on three occasions, two of those being significant distances. The case was an emotive one, concerning only parenting issues.

4. The parties at trial had agreed to orders for equal shared parental responsibility. However, the primary judge concluded that such orders were not in the best interest of the children and made an order for sole parental responsibility to the father (after ensuring that the parties were afforded an appropriate opportunity to address that question).

5. I take into account that the ordinary order for costs under s 117(1) of the Act is that the parties shall bear their own costs, however, that has less force on appeals than it does at trial, as there has already been a judgment in the matter. In this case, the primary judgment sets out detailed reasons running to some 92 paragraphs.

6. Ultimately, however, when considering the matter as a whole, I am not persuaded that it is appropriate to make a costs order in the circumstances of this case, and therefore, I make no order as to costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Riethmuller.

Associate:

Dated:       18 August 2023