Markwell and Ranwick and Anor

[2020] FamCAFC 165

FAMILY COURT OF AUSTRALIA

MARKWELL & RANWICK AND ANOR [2020] FamCAFC 165

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for costs of a discontinued appeal – Where the appellant sought to challenge interim parenting orders – Where final orders made and the appeal against interim orders rendered nugatory – Whether a costs order should be made against the appellant – Where the merits of the appeal were not considered as a result of it being discontinued – Where the appellant’s financial circumstances are considered – Second respondent’s application for costs dismissed.

APPELLANT: Ms Markwell

FIRST RESPONDENT: Mr Ranwick

SECOND RESPONDENT: Mr Solberg

INDEPENDENT CHILDREN’S LAWYER: Barker & Barker

FILE NUMBER: CAC 1533 of 2014

APPEAL NUMBER: EA 57 of 2020

DATE DELIVERED: 1 July 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 1 July 2020

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 30 June 2020

LOWER COURT MNC: [2020] FCCA 1751

REPRESENTATION

THE APPELLANT: In person

SOLICITOR FOR THE FIRST  RESPONDENT: Evans Family Lawyers

SOLICITOR FOR THE SECOND RESPONDENT: Chamberlains Law Firm

SOLICITOR FOR THE INDEPENDENT CHLDREN’S LAWYER: Barker & Barker

Orders

1. That the appellant be granted leave to make an oral application to discontinue the appeal without filing a Notice of Discontinuance.

2. That pursuant to Order 1 above, leave is granted.

3. That the application for costs made by the second respondent be dismissed.

IT IS NOTED:

(A)That appeal EA 57 of 2020 stands discontinued.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 57 of 2020
File Number: CAC 1533 of 2014

Ms Markwell

Appellant

And

Mr Ranwick

First Respondent

And

Mr Solberg

Second Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me an application for costs said to arise as a consequence of the decision by Ms Markwell (“the appellant”) to discontinue her appeal.  The appeal concerned interim parenting orders including a recovery order.  Yesterday the primary judge made final orders and published her reasons for that decision.  It is recognised by everybody that the effect of the final orders is to render the appeal against the interim orders nugatory. 

2. Mr Solberg (“the second respondent”) is legally aided and it is a condition of his grant of legal aid that costs be sought.  These are quantified in the amount of $528.  The submission is made that by discontinuing the appeal, the appeal has been wholly unsuccessful.  I do not agree.  The merits of the appeal have not been considered and the provision in relation to the assessment of merits is not engaged.  

3. It is submitted that the appellant could have moved more quickly to discontinue the appeal because the parties were advised last week that judgment in the final proceedings would be given yesterday.  I have some sympathy for the position taken by the second respondent in that regard and it certainly would have been open and reasonable for the appellant to seek to obtain legal advice last week about the effect on her appeal of a judgment which dealt with the final issues.  But it could not be said that the appellant moved so slowly that one might think she disregarded her obligations as a litigant to properly engage in the litigation.  In my view she has acted reasonably and as soon as she was able to secure advice about the effect on her appeal of the final orders.  She has acted on the advice and sought to discontinue the appeal. 

4. I also take into account the appellant’s financial circumstances which are quite difficult and, on balance, my view on the application for costs is that it should be dismissed.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 1 July 2020.

Associate: 

Date:  10 July 2020