W and Director General Department of Community Services & Ors

[2006] FamCA 1211

FAMILY COURT OF AUSTRALIA

W & DIRECTOR GENERAL DEPARTMENT OF COMMUNITY SERVICES AND ORS [2006] FamCA 1211

COSTS – Hague Convention on International Child Abduction – The mother successfully appealed against the dismissal of her application to set aside orders for return of a child to the United States – The father sought that his costs, including his costs of travel to Australia, be paid by the State Central Authority, or in the alternative, by the mother and/or her mother, who was not a party to the appeal – Costs orders against the Central Authority in Convention proceedings can only be ordered in favour of a party who has been substantially successful in the appeal – The father was wholly unsuccessful in his opposition to the appeal as a result of further evidence permitted to be adduced that demonstrated the child objected to being returned to the USA – The maternal grandmother, who may have given the child emotional support, was not a party to proceedings and no order could be made against her – There were no matters raised that would satisfy the making of an order contrary to the provisions of s117 (1) of the Family Law Act 1975 (Cth).

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

APPELLANT MOTHER: W

FIRST-NAMED RESPONDENT: DIRECTOR GENERAL DEPARTMENT OF COMMUNITY SERVICES

SECOND-NAMED RESPONDENT FATHER: A

INDEPENDENT CHILDREN’S LAWYER: FIONA REID

FILE NUMBER: SYF 3228 of 2004

APPEAL NUMBER: EA 44 of 2006

DATE DELIVERED: 16 November 2006

PLACE DELIVERED: SYDNEY

JUDGMENT OF: BRYANT CJ, KAY & BOLAND JJ

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 28 April 2006

LOWER COURT MNC: [2006] FamCA 449

REPRESENTATION

COUNSEL FOR THE APPELLANT: By way of written submissions

SOLICITORS FOR THE APPELLANT: Watts McCray Lawyers

COUNSEL FOR THE

FIRST-NAMED RESPONDENT:

By way of written submissions

SOLICITORS FOR THE

FIRST-NAMED RESPONDENT:

Director Legal Services, Department of Community Services

COUNSEL FOR THE

SECOND-NAMED RESPONDENT FATHER

By way of written submissions

INDEPENDENT CHILDREN'S LAWYER: Reid Family Lawyers

Orders

1. The applications for costs in the appeal made by respondent father are dismissed.

FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 44  of 2006
File Number: SYF 3228  of 2004

W

Appellant

And

DIRECTOR GENERAL DEPARTMENT OF COMMUNITY SERVICES 

First-named Respondent

And

A

Second-named Respondent Father

FIONA REID

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 28 July 2006 we made orders allowing an appeal by the mother against orders made by Lawrie J on 28 April 2006 that dismissed an application to set aside an order previously made that required the return of a child to the United States pursuant to the Family Law (Child Abduction Convention) Regulations 1986.

2. In our orders we provided that each of the parties to the appeal be at liberty to file and serve any submissions concerning the costs of the appeal.  We have now received written submissions from the mother, the father and the State Central Authority.

3. In his submissions filed 18 August 2006 the father seeks to extend his claim for costs to deal not only with the costs of the appeal but also costs of the various hearings at first instance.  It is not appropriate that the Full Court deals with the costs at first instance which, if pursued, should be the subject of applications to a judge sitting at first instance.  Any costs order could then be the subject of appellate review.

4. As to the costs of the appeal, the father, who was effectively wholly unsuccessful in the appeal, seeks an order that the State Central Authority pay his costs of the appeal, including expenses incurred by him travelling to and staying in Australia.  He also seeks further or in the alternative that the appellant mother and/or her mother (who is not a party to the proceedings) should pay his costs including expenses involved in his attendance at Australia for the proceedings totalling approximately $29,200.

5. Section 117AA of the Family Law Act 1975 (Cth) (“the Act”) provides that costs orders can only be made in proceedings relating to international conventions in favour of a party who has been substantially successful in the proceedings against a person or body who holds an office or appointment under the Regulations. It cannot be said that the husband has been substantially successful in the appellate proceedings and accordingly no power exists in the court to make an order against the State Central Authority in the circumstances.

6. Section 117AA(3) also provides that in proceedings under the relevant Regulations the court can also make an order for costs

   (a)against a party who has wrongfully removed or retained a child,…and

   (b)in respect of the necessary expenses incurred by the person who made the application, under that Convention, concerning the  child.

7. There was no challenge in the principal proceedings to the proposition that the mother had wrongfully removed the child from the United States thus invoking the power of the court under the Convention to make an order for the return of the child.  She was successful on the appeal, however, on the basis of further evidence that was allowed at the appeal that raised a discretionary defence to the return of the child, namely that the child objected to being returned and that it was appropriate to give effect to those objections.

8. In response to the father’s claim against her and her mother, the appellant correctly states the position that the father cannot seek costs against her mother who was not a party to the proceedings.  Even if there was jurisdiction to make an order for costs against the grandmother, there was nothing put before us to indicate that it would be a proper exercise of any discretion to so order.  The father refers to our observations at par 46 of our principal judgment that the maternal grandmother was fully supportive of the child in his resistance to return to the United States.  That of itself would not be a basis upon which it would be appropriate to grant an order against her.

9. In any exercise of our discretion to award an order against the successful appellant, we need to give proper consideration to the relevant matters under s 117(2A) of the Act.

   ·    We do not have any particulars of the financial circumstances of either of the parties. 

   ·    The father was in receipt of legal aid for the appeal. 

   ·    There are no aspects of the conduct of the parties in relation to the appeal that make it appropriate that a costs order should follow. 

   ·    The applicant for costs has been wholly unsuccessful in the proceedings albeit as a result of further evidence that was admitted at the appeal. 

   ·    The father’s expenses in attending at the appeal were the subject of an order for security for costs and we understand an application has been made to a judge sitting at first instance in relation to the release of some or all of those monies to help defray the expenses incurred by the father.

10. We are not satisfied that circumstances exist that justify us in making an order contrary to the provisions of s 117(1) namely that in proceedings under the Act each party shall bear his or her own costs.

11. In her submissions the mother indicated that she did not seek any order for costs nor were any costs sought by the Central Authority.

12. The applications for costs in the appeal made by respondent father are dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of this Honourable Full Court

Associate: 

Date:  16 November 2006