Oscar and Sankey (Costs)

[2007] FamCA 1288

FAMILY COURT OF AUSTRALIA

OSCAR & SANKEY (COSTS) [2007] FamCA 1288

FAMILY LAW – APPEAL - COSTS

APPELLANT: MR OSCAR

RESPONDENT: MS SANKEY

FILE NUMBER: NCF 1595 of 2002

APPEAL NUMBER: EA 32 of 2006

DATE DELIVERED: 1 November 2007

PLACE DELIVERED: Brisbane (in Chambers)

JUDGMENT OF: BRYANT CJ, WARNICK AND BOLAND JJ

HEARING DATE: By way of written submissions

LOWER COURT JURISDICTION: Family Court of Australia

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Cleary

SOLICITOR FOR THE APPELLANT: Marshall & Partners

SOLICITOR FOR THE RESPONDENT: Mr Fleming

SOLICITORS FOR THE RESPONDENT: Cunningham & Adam Solicitors

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Full Court delivered this day will for all publication and reporting purposes be referred to as Oscar & Sankey (Costs).

ORDERS

1. That there be no order as to costs.

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: EA 32 of 2006
File Number: NCF 1595 of 2002

MR OSCAR

Appellant

And

MS SANKEY

Respondent

REASONS FOR JUDGMENT

1. For reasons we gave on 14 August 2007, we dismissed an appeal by the father [Mr Oscar] against orders by Mullane J that the father have supervised contact with his two children on one occasion of for about four hours, every six months.  Mullane J further ordered that the children have no other contact with the father. Other orders limited contact between the mother and father proscribed certain behaviour by each of the parents and rejected Mr [Oscar]’s request to be privy to certain information about the children and the mother.

2. At the hearing of the appeal on 30 April 2007, the appellant also sought leave to make an application to adduce further evidence. We rejected that application and gave reasons with our reasons for dismissing the appeal.

3. Along with the order that the appeal be dismissed, we made directions that the parties be at liberty to file written submissions relating to costs. The mother sought costs. She relied upon:

   (i)the outcome of the appeal, which saw fourteen grounds fail and an application for leave to adduce further evidence dismissed;

   (ii)alleged significant delay and costs caused by the father following the filing of the notice of appeal.

4. The mother was legally aided for the appeal. The father is in receipt of a Centrelink pension. He has, he submits, no capacity to meet a costs order.

1. The outcome of the appeal

1. We accept that this factor is significant and favours an order for costs. However, the order was one of “extreme” consequence. That consequence had been mooted by the trial Judge, not a party. The appeal was not frivolous.

1. The alleged delay and additional costs caused by the father

1. A chronology is provided by the mother. Although it shows that at one time the appeal was abandoned, it was reinstated. The chronology does not contain any information about the merits or demerits of particular events. Nothing explains why costs were not sought or granted at particular times.

2. We are not satisfied that any relevant conclusions can be drawn against the father.

3. In view of his financial circumstances and the legal aid received by the mother, we are not satisfied that there should be a departure from s 117(1) of the Family Law Act 1975 (Cth), and accordingly no order for costs should be made against him.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court of the Family Court of Australia

Associate: 

Date:  1 November 2007