Lind and Sedgwick and Ors
[2014] FamCAFC 25
•26 February 2014
FAMILY COURT OF AUSTRALIA
| LIND & SEDGWICK & ORS | [2014] FamCAFC 25 |
| FAMILY COURT – COSTS – where appeal allowed – application for costs certificates – where parties presented orders to be made by consent at trial – where orders said to be defective such that appellate intervention warranted – that parties presented the orders about which complaint is made weighs against a certificate – application dismissed. |
| Family Law Act 1975 (Cth) ss 69ZK(1), 117 Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9 |
| B & B (Costs Certificates) (2007) FLC 93-339 Yates & Yates (Independent Children’s Lawyer – Costs) [2012] FamCAFC 219 |
| APPELLANT: | Ms Lind |
| 1ST RESPONDENT: | Mr Sedgwick |
| 2ND RESPONDENT: | Mrs Sedgwick |
| 3RD RESPONDENT: | Ms Macer |
| INDEPENDENT CHILDREN’S LAWYER: | Phillip A Wilkins & Associates |
| INTERVENER: | Director-General, Department Of Community Services |
| FILE NUMBER: | SYC | 4647 | of | 2008 |
| APPEAL NUMBER: | EA | 116 | of | 2013 |
| DATE DELIVERED:: | 26 February 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 19 February 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 24 July 2013 |
| LOWER COURT MNC: |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Goodchild with Mr Hill |
| SOLICITOR FOR THE APPELLANT: | Elizabeth Fleming & Associates |
| FOR THE 1ST RESPONDENT: | In Person |
| SOLICITOR FOR THE 2ND RESPONDENT: | Ross A Clarke & Associates |
| SOLICITOR FOR THE 3RD RESPONDENT: | Ross A Clarke & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Druitt |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Phillip A Wilkins & Associates |
| COUNSEL FOR THE INTERVENER: | Mr Anderson |
| SOLICITOR FOR THE INTERVENER: | Crown Solicitor’s Office |
Orders
The applications for costs certificates pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) made by the appellant mother, respondent paternal grandmother and Independent Children’s Lawyer are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lind & Sedgwick and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 116 of 2013
File Number: SYC 4647 of 2008
| Ms Lind |
Appellant
And
| Mr Sedgwick |
First Respondent
And
| Mrs Sedgwick |
Second Respondent
And
| Ms Macer |
Third Respondent
And
| Phillip A Wilkins & Associates |
Independent Children’s Lawyer
And
| Director General, Department of Family & Community Services |
Intervener
REASONS FOR JUDGMENT
By Notice of Appeal filed on 20 August 2013, the mother appealed a parenting order made on 24 July 2013 by Judge Altobelli.
After the appeal was allowed, some participants in the appeal sought costs certificates. These reasons address that issue.
His Honour’s order made on 24 July 2013 varied a consent order he made on 17 February 2011. So as to understand the gravamen of the appeal, it is necessary to set out the 2011 order, which is set out below:
17.That, following the child commencing school, the paternal family consisting of the father, [Mr Sedgwick], [Ms Macer] and [the child’s half sister] will spend time with the child every alternate weekend from 10am Saturday to 6pm Sunday with change-over affected as set out in Order 4 above subject to the father being at all times in the presence of [Mrs Sedgwick].
By the 24 July 2013 order, reference to the child, Teresa Sedgwick (not her real name) in Order 17 of the 2011 orders was removed.
The subject proceedings (and hence this appeal) concerned the child. Teresa Sedgwick is the child’s half-sister. Mr Sedgwick (“the father”) is both girls’ father and a respondent to this appeal.
Teresa lives with Mrs Sedgwick, who is her paternal grandmother, (“the second respondent”) and Ms Macer (“the third respondent”). In this regard, orders were made by the Children’s Court of New South Wales on 27 August 2010 that the Minister for the Department of Family and Community Services (NSW) (“the intervener”), the second respondent and third respondent have shared parental responsibility for Teresa in relation to contact between Teresa and any other person, education and training, major medical and dental treatment. The second and third respondents have sole responsibility for the care of Teresa in relation to the day to day care and residence, minor medical and dental treatment, culture and religion, recreation and all residual aspects of parental responsibility.
As a consequence of the 2010 orders made in the Children’s Court, at all relevant times, Teresa was a child under the care of a person pursuant to a child welfare law as a consequence of which s 69ZK(1) of the Family Law Act 1975 (Cth) (“the Act”) imposed limitations upon the court’s power to make parenting orders under the Act in relation to Teresa. Simply put, an order could not be made under the Act in relation to Teresa unless:
a)the order came into effect when Teresa was no longer under the care of a person pursuant to a child welfare law; or
b)the order was made in proceedings relating to the child, the institution or continuation of which was undertaken with the written consent, in this case, of the Minister of the Department of Family and Community Services (NSW).
Neither of these provisions had been complied with. So that it is not overlooked, at the court’s invitation, the Director General, Department of Family and Community Services (NSW) intervened in this appeal.
At the commencement of this appeal, the parties sought and were given time to consider whether the appeal could be resolved. Agreement was reached that the appeal should be allowed and the orders made by Judge Altobelli varied. It was also agreed that no order for costs pursuant to s 117 of the Act should be made.
Consequent upon the appeal being allowed, the appellant, second respondent and the Independent Children’s Lawyer (“ICL”) sought orders pursuant to s 6 and s 9 of the Federal Proceedings (Costs) Act1981 (Cth) (“the Costs Act”).
It is not clear that an order pursuant to the Costs Act is able to be made in favour of an ICL. Yates & Yates (Independent Children’s Lawyer – Costs) [2012] FamCAFC 219, however, as the argument advanced by counsel for the ICL for costs certification was weak and power was not addressed, the power issue can await another day.
Before orders pursuant to either s 6 or s 9 of the Costs Act may be made, three matters must be established. Namely:
·the existence of a federal appeal;
·that the appeal has succeeded on a question of law; and
·that the court concerned should have heard the appeal.
B & B (Costs Certificates) (2007) FLC 93-339.
In addition, an appellant must establish that the appellant will bear his or her own costs.
Each matter is established.
In relation to the second of the matters summarised above, as has been already referred to, it is the mother’s contention that the trial Judge lacked jurisdiction to make the order of 24 July 2013 and that by allowing Order 17 of the 2011 orders to continue, those orders were made in breach of s 69ZK of the Act.
Different views were expressed about the status of an order apparently made in favour of Teresa. This, in turn, raised questions about the validity of the 2011 order and whether it was a nullity, voidable or amenable to variation. However, it was common ground that the orders apparently made in favour of Teresa and which then removed her right to have contact with the child, were made in proceedings to which she was neither a party nor the subject child.
The terms of the agreement reached between the parties indicate their agreement that an order in favour of a person who was not a party to the proceedings, particularly a person in Teresa’s circumstances and its later variation, was an error of law.
I agree that the appeal should be allowed.
However, whether or not an order that a certificate issue be made is discretionary. It is noteworthy, that the parties who sought certificates were represented before Judge Altobelli, of particular relevance when he made the original 2011 consent orders. They presented the orders about which complaint is now made, a factor which weighs heavily against the court exercising its discretion in favour of a certificate being ordered. Simply put, to a very significant degree the parties are responsible for the error about which they now complain.
The applications for costs certificates will be dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 26 February 2014.
Associate:
Date: 26 February 2014
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