KMB & PRL & Child Representative

[2006] FamCA 151

[2006] FamCA 151

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE

FAMILY COURT OF AUSTRALIA

AT MELBOURNE

Appeal No. SA6 of 2004
File No. MLF8035 of 1996

IN THE MATTER OF:

KMB

Appellant Mother

and

PRL

Respondent Father

CHILDREN’S REPRESENTATIVE

___________________________________________________________________________

REASONS FOR JUDGMENT OF THE FULL COURT

___________________________________________________________________________

CORAM: Kay, Holden and May JJ

HEARD: BY WAY OF WRITTEN SUBMISSIONS filed on behalf of the appellant on 4 January 2006 and filed on behalf of the respondent on 17 January 2006.

DATE OF JUDGMENT:  13 March 2006

Mr Cronin (Coadys, DX 190, Melbourne VIC) on behalf of the appellant mother

Mr Glover of Counsel (Ingpen & Bent, DX 22044, Geelong VIC) on behalf of the respondent father

APPEAL SUMMARY

MATTER:KMB and PRL

APPEAL NUMBER:  SA 6 of 2004

CORAM:Kay, Holden and May JJ

HEARD:BY WAY OF WRITTEN SUBMISSIONS filed on behalf of the appellant on 4 January 2006 and filed on behalf of the respondent on 17 January 2006.

DATE OF JUDGMENT:  13 March 2006

CATCHWORDS:                

APPEALS – COSTS – Substantive appeal allowed by Full Court and new trial ordered – Costs certificates sought by appellant and respondent – Costs certificates granted in respect to the appeal and the new trial.

LEGISLATION:

Federal Proceedings (Costs) Act 1981

Costs certificates granted to appellant and respondent for costs of appeal and new trial.

Submissions as to costs

1. The substantive appeal in this matter was delivered on 14 December 2005, in which we allowed the appeal and provided time limits for the parties to make submissions in writing as to the issue of costs. 

1. It is relevant to this application to include part of the reasons for allowing the appeal contained in the paragraphs reproduced below:

   70.In our opinion there remains the obligation on a trial Judge to fully evaluate the competing proposals, to weigh up the pros and cons of each circumstance and to then dispassionately make the decision that the trial Judge concludes will best advance the welfare of the child. In circumstances where the evidence led does not provide the court with sufficient material to make such an evaluation, it becomes incumbent upon the Judge to draw his or her concern to the attention of the parties and, in particular, a child representative where one has been appointed, so that the Court has evidence of a specialist nature upon which it can properly act.

   71.The circumstances in which such evidence may become necessary are not present in every case. This case was most unusual in that a change of residence was sought after a significant period of a lack of contact brought about in part by the child’s express views albeit that those views were said to be reflective of the mother’s attitude. In those circumstances the forced change of the child from the only environment he had ever known to an environment which he saw as hostile might have the most serious short and long term ramifications for the child. Unless the Court was properly attuned to those ramifications with the assistance of expert evidence, it seems unlikely that the Court could determine the issue.

   72.As the mandate of the court was to make an order that best advanced the welfare of the child it became incumbent upon the trial Judge to either inquire himself further of the forensic psychologist as to the likely ramifications for the child’s short and long term welfare if the change of residence either succeeded in creating a relationship with both parents or continued to leave the child hostile to one or other of the parents; or for the child representative to place such evidence before the court particularly as this radical step was advocated by them. It was only after he was armed with that information that the trial Judge could properly then evaluate the situation and reach a decision about it or ask that further evidence be called from an expert in that area. So much of the forensic psychologist’s opinion was based on her view of ‘parental alienation’, a concept of which we are aware is at the least controversial.

   73.In our view the appeal must be allowed on this ground, especially as the consequences for this family are so serious. Regrettably, there is no choice but to order a new trial.

1. The appellant filed written submissions as to costs on 4 January 2006, and the respondent on 17 January 2006. 

1. We did not receive any submissions from the children’s representative within the timeframe specified in our orders, being 14 days from the receipt of the appellant’s costs submissions.

1. The application by the appellant mother is that certificates under the Federal Proceedings (Costs) Act 1981 (“the Act”) be issued in relation to both the appeal and the new trial.  The appellant submits that the granting of such certificates is appropriate because of the error referred to in paragraphs 71 and 72 of our reasons for judgment and because such error was no fault of the mother.  In support of the mother’s application, her counsel refers to her modest income, that she has no significant assets, the financial assistance of her father for the costs of the trial and appeal, her lack of eligibility for legal aid and the considerable expense of a new trial.

1. The respondent father also asks for costs certificates under the Act for the appeal and new trial. The respondent submits that the success of the appeal is no criticism of the father’s case or presentation of such at trial, or of anything done or failed to be done on the part of the father. In support of his application, the respondent’s counsel refers to the father’s modest income, his property including real estate having an equity of approximately $150,000, his responsibility to support the three young children of his current relationship, the financial assistance of his mother during and leading up to the trial and the appeal, and the considerable expense of a new trial.

1. It is appropriate in these circumstances for costs certificates to be granted to the appellant and the respondent in relation to the costs of the appeal and of any new trial.

1. Accordingly, we make the following orders:

   1.The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 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 appellant in respect of the costs incurred by her in relation to the appeal.

   2.The Court grants to the respondent father 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 respondent in respect of the costs incurred by him in relation to the appeal.

   3.The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 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 each of the parties in respect of the costs incurred by them in relation to the new trial ordered.

I certify that the 8 preceding paragraphs
are a true copy of the reasons for judgment delivered by this Honourable Full Court.


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