Kest & Olsson - [2012] FamCA 148

FAMILY COURT OF AUSTRALIA

KEST & OLSSON

[2012] FamCA 148

FAMILY LAW - COSTS – application by the Independent Children’s Lawyer (‘ICL’) seeking orders that the mother and father pay the costs of the ICL – where the ICL submits that the Court should take into account the need to protect the public purse – consideration of the factors in s 117(2A) – consideration of the financial circumstances of the parties – where it was not just and equitable for a costs order to be made in the circumstances – no orders made as to costs.

Family Law Act 1975 (Cth) s 117

APPLICANT:

Ms Kest

RESPONDENT:

Mr Olsson

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

Northern Territory Legal Aid Commission

FILE NUMBER:

NCC

278

2008

DATE DELIVERED:

12 March 2012

PLACE DELIVERED:

Darwin

PLACE HEARD:

Darwin

JUDGMENT OF:

Dawe J

HEARING DATE:

12 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gordon

SOLICITOR FOR THE APPLICANT:

Ward Keller

COUNSEL FOR THE RESPONDENT:

Mr Levick

SOLICITOR FOR THE RESPONDENT:	Gianacas Argiris McDonald
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWEYR	Ms Palavra
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	Northern Territory Legal Aid Commission

Orders

By consent orders are made in terms of the minutes this day signed by the Honourable Justice Dawe with the mother’s solicitors to engross the orders for sealing by this Court within seven days from today.
The appointment of the Independent Children’s Lawyer is discharged.
No order made as to costs.
Remove all matters from the active pending list.

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

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: NCC 278 of 2008

Ms Kest

Applicant

And

Mr Olsson

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

I have before me the application on behalf of the Independent Children’s Lawyer that the parties, the mother and father of the children, in these proceedings pay the costs of the Independent Children’s Lawyer. That application is opposed by both the counsel for the mother and counsel for the father.
The matter was listed before me today for a trial which was estimated to take four days. I have already congratulated the parties and counsel on their resolution of the matter by way of Consent Orders which I made this morning.
The question of costs in this matter of course needs to be seen in the context of the history of the matter and, specifically pursuant to the provisions of section 117, in particular the provisions of subsection 117(1) which provides that, subject to subsection (2) and other subsections and other sections, each party to the proceedings under the Family Law Act 1975 (Cth) (“the Act”) shall pay his or her own costs.
Subsection (2), however, provides that if the Court is of the opinion that there are circumstances that justify it in doing so it may, subject to the provisions of sections…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kest & Olsson

Details

AGLC: Kest & Olsson [2012] FamCA 148
Case: [2012] FamCA 148
Decision Date: 12 March 2012

CaseChat Overview and Summary

In the matter of Kest & Olsson, Dawe J of the Family Court of Australia presided over a dispute between the parties concerning family law matters. The specific nature of the dispute, beyond its family law context, is not detailed in the provided text.

The court was required to determine the appropriate orders to be made in relation to the proceedings. This included considering the consent of the parties, the appointment of an Independent Children’s Lawyer, and the matter of costs.

By consent, the court made orders in terms of minutes signed by the parties' solicitors. The appointment of the Independent Children’s Lawyer was discharged, and no order was made as to costs. All matters were subsequently removed from the active pending list.

Orders

Orders of the court

By consent orders are made in terms of the minutes this day signed by the Honourable Justice Dawe with the mother’s solicitors to engross the orders for sealing by this Court within seven days from today.

The appointment of the Independent Children’s Lawyer is discharged.

No order made as to costs.

Remove all matters from the active pending list.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.