Redmond & Redmond (No 2) - [2023] FedCFamC1F 249

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Redmond & Redmond (No 2) [2023] FedCFamC1F 249

File number(s): SYC 1371 of 2020

Judgment of: SCHONELL J

Date of judgment: 5 April 2023

Catchwords: FAMILY LAW – COSTS – Where both parties sought costs – Where the Independent Children’s Lawyer (“the ICL”) sought for the father to pay the ICL’s costs or then alternatively for both the mother and the father to pay the costs equally – Consideration of factors in s 117(2A) of the Family Law Act 1975 (Cth) – Applications for costs dismissed.

Legislation:
Family Law Act 1975 (Cth) ss 102NA, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
Bant & Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35

Legal Aid ACT v Westwell (2021) FLC 94-013; [2021] FamCAFC 50

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158

Penfold and Penfold (1980) 144 CLR 311; [1980] HCA 4

Division: Division 1 First Instance

Number of paragraphs: 27

Date of last submissions: 26 March 2023

Place: Sydney

Counsel for the Applicant: Mr Flanigan

Solicitor for the Applicant: Grant & Co

The Respondent: Self-represented litigant

Solicitor for the Independent Children's Lawyer: John Dawson & Associates
ORDERS

SYC 1371 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS REDMOND

Applicant

AND:
MR REDMOND

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

SCHONELL J

DATE OF ORDER:

5 APRIL 2023

THE COURT ORDERS THAT:
1.The applicant mother’s and respondent father’s applications for costs are dismissed.
2.The Independent Children’s Lawyer’s oral application for costs is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Redmond & Redmond has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:

On 15 March 2023, the Court made orders by consent as between the Independent Children’s Lawyer (“the ICL”) and the mother in relation to various parenting matters. The father had by Notice of Discontinuance filed 1 February 2023 and subsequently at a mention before the Court on 3 February 2023 confirmed that he intended to take no further part in the proceedings, conscious in the knowledge that the Court would then proceed to deal with parenting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Redmond & Redmond (No 2)

Details

AGLC: Redmond & Redmond (No 2) [2023] FedCFamC1F 249
Case: [2023] FedCFamC1F 249
Decision Date

CaseChat Overview and Summary

In Redmond & Redmond (No 2), the Federal Circuit and Family Court of Australia (Division 1) was tasked with determining applications for costs following a hearing on parenting matters. Both the mother and the Independent Children’s Lawyer (ICL) sought costs from the father, while the father opposed both applications. The ICL specifically sought that the father pay half of the ICL’s costs, with an alternative request that both parties equally share the ICL’s costs.

The court was required to decide whether there were justifying circumstances under section 117(2) of the Family Law Act 1975 (Cth) to depart from the general rule that each party should bear their own costs. The court considered the factors outlined in section 117(2A) of the Act, including the financial circumstances of the parties, whether any party received legal aid, the conduct of the parties, and other relevant matters. The mother had been provided with legal aid, which under certain interpretations, does not render her immune from an order for costs. Neither party had been wholly unsuccessful, and there was no evidence of any offer of settlement. The court found no justifying circumstances to warrant an order for costs against the father.

The court dismissed all applications for costs. Schonell J concluded that the ICL's desire to cross-examine the mother, despite the father's discontinuance, did not provide sufficient justification to order the father to pay costs. The court held that there were no justifying circumstances to make a costs order against the father, and therefore dismissed the applications for costs from both the mother and the ICL.

Orders