Whister and Swan (No 2) - [2013] FamCAFC 135

FAMILY COURT OF AUSTRALIA

WHISTER & SWAN (NO. 2)

[2013] FamCAFC 135

FAMILY LAW – APPEAL – COSTS – Where respondent had earlier made an unsuccessful application to summarily dismiss appeal – Costs reserved – Application premature – No order as to costs.

FAMILY LAW – COSTS – APPLICATION FOR COSTS OF ABANDONED APPEAL – Respondent seeks costs of appeal generally and costs of application – Where directions and orders were made requiring appellant to file an amended notice of appeal and appeal hearing expedited – Where appellant failed to file amended notice of appeal – Where appellant failed to file appeal books within time – Where respondent made offer – Where appellant sought to significantly alter offer – Appellant ordered to pay respondent’s costs of appeal and of costs application to be assessed .

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPELLANT:

Mr Whister

RESPONDENT:

Ms Swan

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid (Qld)

FILE NUMBER:

BRC

2009

APPEAL NUMBER:

2013

DATE DELIVERED::

3 September 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

3 September 2013

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

19 December 2012

LOWER COURT MNC:

[2012] FamCA 1074

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Appellant appeared in person

SOLICITOR FOR THE RESPONDENT:

Odyssey Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Bell

Orders

The appellant father pay the respondent mother’s costs of the appeal to be assessed including the costs of today.
There be no order as to costs of the application filed 15 April 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Whister & Swan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE JURIDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 3 of 2013
File Number: BRC 20 of 2009

Mr Whister

Appellant

And

Ms Swan

Respondent

REASONS FOR JUDGMENT

By application filed 9 August 2013 the respondent to a now abandoned appeal, the mother, asks that the appellant pay her costs including those incurred at a previous hearing, the costs of this application and generally in response to the appeal.
The application is brought relying on r 22.53(2)(b) of the Family Law Rules 2004 (Cth) (“the Rules”).

BACKGROUND

The appellant filed a Notice of Appeal on 16 January 2013 against parenting orders made on 19 December 2012. On 25 March 2012 the mother and her lawyers attended a directions hearing before the Registrar as did the Independent Children’s Lawyer. The appellant appeared by telephone. The standard procedure was followed including the Registrar explaining particularly to the appellant, who was unrepresented, what was required of him and the effect of his failing to file documents on time. Directions were made as to the filing of the appeal books and submissions.
On 15 April 2013 the respondent’s solicitor filed an application seeking that the appeal be…

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.

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Details

Case: [2013] FamCAFC 135
Decision Date: 3 September 2013

CaseChat Overview and Summary

In the case of Whister and Swan, the respondent, a mother, sought an order for the appellant, her former partner and the father of her child, to pay her costs of an appeal in family law proceedings. The matter came before the Family Court of Australia, which was asked to determine whether the mother was entitled to costs from the father for the costs of the appeal, as well as for the costs of a previous application she had made. The mother had earlier made an unsuccessful application to summarily dismiss the father's appeal, and costs were reserved at that time.

The court considered the procedural history of the case, including the father's failure to file an amended notice of appeal and his failure to file appeal books within the time specified by the court. The mother had made an offer to settle the costs of the appeal, but the father had sought to significantly alter that offer. The court was required to decide whether the mother was entitled to costs for the appeal and the costs application, and if so, in what amount.

The court found that the father was ordered to pay the mother's costs of the appeal, to be assessed including the costs of the hearing. The court noted that the father's conduct throughout the proceedings had been unreasonable and had contributed to the costs incurred by the mother. However, the court found that the mother's application for costs of the earlier application was premature, as the outcome of the appeal was still pending. Therefore, the court made no order as to costs of that application.

The court's orders were that the father pay the mother's costs of the appeal, to be assessed including the costs of the hearing, and that there be no order as to costs of the earlier application. The court's decision provides guidance to parties in family law proceedings about the circumstances in which costs may be awarded, and the factors that the court will take into account in making such an order.

Orders

Orders of the court

1. The appellant father pay the respondent mother’s costs of the appeal to be assessed including the costs of today.

2. There be no order as to costs of the application filed 15 April 2013.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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