Xuarez and O’Halloran and Anor (No. 3)

[2013] FamCAFC 140

FAMILY COURT OF AUSTRALIA

XUAREZ & O’HALLORAN AND ANOR (NO. 3) [2013] FamCAFC 140

FAMILY LAW – APPEAL – APPLICATION IN APPEAL – Costs

Family Law Rules 2004 (Cth)

APPLICANT: Mr Xuarez

FIRST RESPONDENT

Ms O’Halloran

(Independent Children’s Lawyer)

SECOND RESPONDENT: Ms Vitela

FILE NUMBER: BRC 7312 of 2007

APPEAL NUMBER: NA 76 of 2012

DATE DELIVERED: 11 September 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: May J

HEARING DATE: 11 September 2013

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 25 July 2012

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE 1^st RESPONDENT No appearance by the First Respondent

SOLICITOR FOR THE 2^nd RESPONDENT No appearance by the Second Respondent

Orders

1. The application in an appeal filed on 3 September 2013 is dismissed.

2. There be no orders as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Xuarez & O’Halloran and Anor (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT BRISBANE

Appeal Number: NA 76 of 2012
File Number: BRC 7312 of 2007

Mr Xuarez

Applicant

And

Ms O’Halloran
First Respondent (Independent Children’s Lawyer)

Ms Vitela

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In an application in an appeal filed 3 September 2013, the applicant father seeks the following orders:

   1.That the Decision or Order of Regional Appeal Registry, Teresa Kane, be set aside.

   2.That the Application in an Appeal for Orders of an Itemised Costs Account, be allowed and decided by the Appeal Court of the Family Court of Australia.

   3.That the Orders for an Itemised Costs Account be made pursuant to the Family Law Rules – Chapter 19 – Part 19.6 – Division 19.6.1 – Rules 19.20, 19.21, 19.22 – Schedule 3 – Part 1 and 2.

   4.That the Respondents pay their own costs to this Application and appearing on the Hearing.

2. The applicant had previously sought to file an application seeking orders for an itemised costs account. That document was lodged with the Appeal Registry on 26 August 2013 and returned to the applicant by the Registrar.

3. In her letter dated 27 August 2013 the Registrar said:

   Given the Court had fixed the sum of costs payable there is no basis to seek such an order under the Rules and therefore the application cannot be filed. The application and affidavit are returned to you unfiled.

4. The Registrar was correct. In the interests of saving public money the respondents were notified of this application but also informed that their attendance was not required.

5. This is not a Review from an order of a Registrar (r 22.40) but I will deal with it as an application filed by the applicant.

6. There is no order of the Registrar to set aside. The only question is whether the applicant is entitled to seek an itemised bill of costs in relation to costs orders made as a result of orders dated 15 February 2013 and 9 April 2013.

7. The applicant contends that as the Family Law Rules 2004 (Cth) (“the Rules”) (particularly r 19.21 and 19.22) provide for the service of itemised costs accounts, he is entitled to such documents.

background

1. On 12 February 2013, I dealt with an application by the applicant in relation to preparation of appeal books. An order was made, on the application of the independent children’s lawyer and the respondent’s lawyers, for costs fixed in the sum of $1,320. That sum reflected the Legal Aid grant to prepare a response to the application.

2. On 9 April 2013, Murphy J varied the directions for the preparation of the appeal and specified the time for the payment of the costs to be Friday, 8 November 2013.

3. Paragraph 9 and 10 of those orders provided:

   9.Paragraph 2 of the Orders of Justice May made on 15 February 2013 be varied to provide that the Appellant pay each Respondents costs of the application fixed in the sum of $1,320.00 plus GST by 4.00pm, Friday 8 November 2013.

   10.In the event that those costs are not paid in full by that date, the Appellant’s appeal will be deemed abandoned without further order.

conclusion

1. The application is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 15 February 2013.

Associate:

Date: 11 September 2013