Perkin and Olsen (No. 2)

[2009] FamCAFC 151

FAMILY COURT OF AUSTRALIA

PERKIN & OLSEN  (NO. 2) [2009] FamCAFC 151

FAMILY LAW - APPEAL FROM FEDERAL MAGISTRATE – COSTS – where appellant mother has applied for costs certificates –where respondent father has made no appearance and made no application for costs – where father was unrepresented at trial – whether father is entitled to costs certificate – adjourned to allow respondent to make application for costs certificate.

Family Law Act 1975 (Cth), s 117
Federal Proceedings (Costs) Act 1981, ss 8, 9

MOTHER: MS PERKIN

FATHER: MR OLSEN

FILE NUMBER: ADM 1538 of 2006

APPEAL NUMBER: SA 71 of 2008

DATE DELIVERED: 24 August 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 24 August 2009

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 30 July 2008

LOWER COURT MNC: [2008] FMCAfam 798

REPRESENTATION

COUNSEL FOR THE MOTHER: Mrs Tinning

SOLICITOR FOR THE MOTHER: Adey Lawyers

SOLICITOR FOR THE FATHER: No appearance

Orders

1.That the court grants to the appellant 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 relation to costs incurred by the appellant in relation to the appeal.

2.That the court grants to the appellant 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 the appellant in respect of such part as the Attorney-General considers appropriate for any costs incurred by the appellant in relation to the new trial granted by these orders.

3.That leave is granted to the respondent to make an application for a costs certificate pursuant to the provisions of s 8 of Federal Proceedings (Costs) Act 1981 within twenty-eight [28] days of the date hereof.

IT IS NOTED that publication of this judgment under the pseudonym Perkin & Olsen is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 71 of 2008
File Number:      ADM 1538 of 2006

MS PERKIN

Mother

And

MR OLSEN

Father

EX TEMPORE REASONS

1.I have delivered my reasons in this matter and I propose to make the orders set out in paragraphs 1, 2 and 3 of my reasons.  I note that the respondent has not appeared today but he did attend the hearing of the appeal by way of telephone at his request.  Attempts have been made to contact him by the court using the telephone numbers provided but without success.  I am told by Mrs Tinning that this matter was recently before the Federal Magistrates Court and the respondent father did not attend court in person or by telephone and there is no indication of how to contact him.  Thus I have delivered my reasons in his absence. 

2.I have now raised the issue of costs and Mrs Tinning seeks an order for costs certificates pursuant to s 9 and s 8 of the Federal Proceedings (Costs) Act 1981. Section 9 provides for costs certificates to be ordered where an appeal is successful on a question of law and in accordance with s 117 of the Family Law Act 1975 each party to the appeal bears his or her own costs. Section 8 provides for a certificate to be provided in relation to costs incurred where a new trial is ordered. I propose to make those orders in favour of the appellant.

3.The respondent is not here to make an application for a certificate and specifically pursuant to s 8 of the Act. However, the question is whether he would be entitled to one given that he appeared at the trial unrepresented. In the circumstances I propose to give the respondent leave to make an application within 28 days if he is so disposed. If he does make an application I will hear it, but if not that will be the end of the matter.

I certify that the preceding 3 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 24 August 2009.

Associate