Norstrom and Sandhurst

[2012] FamCA 25

FAMILY COURT OF AUSTRALIA

NORSTROM & SANDHURST [2012] FamCA 25

FAMILY LAW – PRACTICE AND PROCEDURE - APPEAL - Leave to withdraw - Costs application by Respondent dismissed

APPLICANT: Ms Norstrom

RESPONDENT: Mr Sandhurst

FILE NUMBER: LEC 533 of 2011

DATE DELIVERED: 30 January 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 30 January 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: North & Badgery

SOLICITOR FOR THE RESPONDENT: O'Reilly & Sochacki Lawyers

Orders

1. The Applicant have leave to withdraw her appeal filed on 17 November 2011 and the matter is removed from the list of matters awaiting finalisation.

1. The Respondent’s application for costs of and incidental to this hearing be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Norstrom & Sandhurst 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 BRISBANE

FILE NUMBER: LEC 533 of 2011

Ms Norstrom

Applicant

And

Mr Sandhurst

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, the Mother has sought and obtained leave to withdraw her Notice of Appeal, which was filed on 17 November 2011 in respect of an Order made by the Local Court on … October 2011. On the surface, it would appear that the Appeal was filed out of time, although there is an affidavit filed by the Mother’s solicitor, Ms Michelle Osborne, explaining the circumstances in which the Notice of Appeal was forwarded to the Registry of this Court for filing on a date within time, and if received and processed by the Registry, would therefore not create any issue with respect to the time of the Appeal.

2. However, the Order which is the subject of the Appeal is an interim Order made by the Local Court which transferred the substantive parenting proceedings to the Federal Magistrates Court. Otherwise, it restrained the Mother from relocating the child the subject of the substantive proceedings from the Newcastle area, or from changing the child’s school without the consent of the Father, such consent to be in writing or by Order of the Court.

3. In those circumstances, it seems to me that the Appeal itself was misconceived in that there were always in existence substantive parenting proceedings yet to be determined by the Federal Magistrates Court. There would be no purpose served by an Appeal from an interim Order of that Court in circumstances where the substantive proceedings remained on foot in the Federal Magistrates Court and both parties had participated and were participating in those proceedings.

4. In those circumstances, and in circumstances where the Mother has consented to withdraw her Appeal in apparent recognition of its lack of utility, one would normally be minded to accede to the Application that has been made by the Father for the costs of and incidental to the Appeal. However, the limitation for the Court is that s 117 of the Family Law Act 1975 (Cth) (“the Act”) requires there to be a number of considerations taken into account by the Court for the Court to depart from what may be termed the “usual” position under s 117(1) whereby each party is to pay their own costs of proceedings. In circumstances, too, where these are child-related proceedings it seems to me that there needs to be particular emphasis on an Applicant for costs making out a relevant subsection under s 117(2) of the Act for the Court to depart from the usual rule. In those circumstances, I make the Orders set out at the commencement of these reasons.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 30 January 2012.

Associate: 

Date:  31 January 2012