Ridley and Radford
[2017] FamCAFC 143
•26 July 2017
FAMILY COURT OF AUSTRALIA
| RIDLEY & RADFORD | [2017] FamCAFC 143 |
| FAMILY LAW – COSTS – APPLICATION IN AN APPEAL – reinstatement – where a Notice of Discontinuance was filed in relation to the father’s Application in an Appeal – where counsel for the Independent Children’s Lawyer sought costs – where all the circumstances of the case do not justify an order for costs against the father – no costs ordered. |
| Family Law Act 1975 (Cth) ss 117(1), 117(2A) Legal Aid Queensland Act 1997 (Qld) |
| APPLICANT: | Mr Ridley |
| RESPONDENT: | Ms Radford |
| INDEPENDENT CHILDREN’S LAWYER |
| FILE NUMBER: | BRC | 7433 | of | 2011 |
| APPEAL NUMBER: | NOA | 2 | of | 2017 |
| DATE DELIVERED: | 26 July 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 26 July 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 December 2016 |
| LOWER COURT MNC: | [2016] FCCA 3383 |
REPRESENTATION
| FOR THE APPLICANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Dart |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Carter Farquar Mediation & Family Law |
Orders
(1)That the parties bear their own costs of and incidental to the hearing of the Application in an Appeal filed on 6 June 2017 discontinued by a Notice of Discontinuance filed on 26 July 2017.
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 Ridley & Radford 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 2 of 2017
File Number: BRC 7433 of 2011
| Mr Ridley |
Applicant
And
| Ms Radford |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
A Notice of Discontinuance was filed by the father on 26 July 2017 discontinuing his Application in an Appeal filed on 6 June 2017 which pertained to orders in respect of his child, X who is now aged approximately seven years of age.
Ms Dart, who appears as counsel for the Independent Children’s Lawyer (“ICL”) makes an oral Application for costs.
The Application is made properly in accordance with the terms of the Legal Aid Queensland Act 1997 (Qld) in respect of the grant of legal assistance provided to ICL’s.
There are, as Ms Dart properly points out, authorities in this Court and more broadly that suggest that the resources of the Legal Aid office in Queensland and indeed all Legal Aid offices, are finite. One might say that a judge is entitled to take judicial notice of the fact that they are not only finite but are ever diminishing.
That of itself provides a solid foundation for the making of an order for costs by those who appear as ICL’s for children and their counsel, particularly in light of the statutory responsibilities of each in acting only in the best interests of the child and in assisting the court in that respect.
I acknowledge that those matters provide a firm foundation for the making of an order for costs and indeed might be seen to provide a justifying circumstance within the meaning of s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”).
However, taking into account all the circumstances in this case, including in particular the fact that the father represents himself and, consequent upon a proposal of the ICL, takes what seems to me, with the greatest respect, to be a sensible approach to his prospective appeal by filing a Notice of Discontinuance, together with the father’s financial circumstances and the fact that he faces on any view of it litigation ahead of him in respect of X, I consider that the rule prescribed in s 117(1) should prevail and that each party to this Application should bear his or her own costs including the ICL.
I order accordingly.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 26 July 2017.
Associate:
Date: 26 July 2017
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