W & E (Costs)

[2005] FamCA 1396

[2005] FamCA 1396

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE      No. NA41 of 2005

(No. BRM4542 of 2004)

BETWEEN:
  W

Appellant Father

AND:
  E

Respondent Mother

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT (Costs)

Dates of Hearing:              Written submissions

Date of Judgment:            16 November 2005

W and E         NA41 of 2005 (BRM4542 of 2004)

Heard:             By way of written submissions
Delivered:        16 November 2005

COSTS – Application for costs by the mother and the child representative based on the failure of the appeal – Unable to make findings about the relevant financial circumstances of the father – Mother argued that father failed to pursue some grounds - In the absence of dissection of costs, the earlier abandonment of some grounds of appeal could not necessarily be seen to have produced appreciable savings – Failure of appeal a relevant consideration – Mother and child representative financially assisted by Legal Aid – No order as to costs.

1. For reasons I gave on 7 October 2005, I dismissed an appeal by the father against parenting orders for residence made in the Federal Magistrates Court in proceedings between the parties in relation to their 2 children.

2. On the same date I made directions enabling applications for costs to be made by way of written submissions.  The children’s representative and the mother seek costs of the appeal.  Measured against the application by the children’s representative, the submissions of the father in answer are late, as they also are against the original submissions on behalf of the mother, but not against her amended submissions.  However, I see no reason in the circumstances not to have regard to the father’s submissions.

3. Dealing initially with the application of the mother, the submissions refer to the financial circumstances of herself and of the father but I am not satisfied that I am in a position to make findings about relevant financial circumstances of the father.

4. The mother also makes some submissions about the conduct of the father, firstly in relation to the grounds of appeal, some of which, as I found, were not ultimately pursued.  While the effect of abandonment of grounds (leaving aside for a moment the father’s explanation) might have some impact on cost, in the absence of dissection, I would not think that early abandonment of some grounds would have produced appreciable savings.

5. Other assertions about the father’s conduct in the proceedings are made, but again I do not consider that I am in a position to determine the validity of those assertions.

6. The failure of the appeal is a relevant consideration, as is the receipt by the mother of legal assistance in respect of the appeal.

7. As to the application of the children’s representative, that representative was in receipt of legal aid.

8. On behalf of the children’s representative, reference was made, as it was on behalf of the mother, to the abandonment of grounds, it being pointed out that some of those grounds related to allegations about the performance of the children’s representative role, thereby causing the children’s representative to feel compelled to participate in the appeal.  Unless I accept the father’s explanation in relation to those “abandoned” grounds, this is a relevant point.  However, I do not understand the children’s representative to say that she would not otherwise have participated in the appeal.  Nor do I see that more than one “abandoned” ground directly related to the conduct of the children’s representative.

9. Finally, in relation to the application by the children’s representative, subsection (5) of section 117 of the Family Law Act, which reads as follows:

   “(5)   In considering what order (if any) should be made under subsection (2) in proceedings in which a child representative has been appointed, the court must disregard the fact that the  child representative is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.”

   is to be noted.

10. Taking account of the above submissions, even if I was to reject the father’s claim about his misunderstanding of the grounds in relation to which he presented no argument, I am not satisfied that I should make any order as to costs.

ORDER

1. That there be no order as to the costs of the mother or of the children’s representative in respect of the appeal.