Stapleton & Hayes (Costs)

[2011] FamCAFC 124

FAMILY COURT OF AUSTRALIA

STAPLETON & HAYES (COSTS) [2011] FamCAFC 124

FAMILY LAW - APPEAL – Costs application – Non compliance with orders for filing of costs submissions – Application dismissed

APPELLANT: Ms Stapleton

RESPONDENT: Mr Hayes

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 2750 of 2007

APPEAL NUMBER: EA 68 of 2009

DATE DELIVERED: 10 June 2011

PLACE DELIVERED: Brisbane

JUDGMENT OF: Bryant CJ, May & Cronin JJ

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 25 May 2009

LOWER COURT MNC: [2009] FamCA 437

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Goodchild

SOLICITOR FOR THE APPELLANT: Neisha Shepherd Solicitor

SOLICITOR FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Ward  

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. There be no order as to costs. 

2. The application by the Independent Children’s Lawyer for costs against the mother is dismissed. 

IT IS NOTED that publication of this judgment under the pseudonym Stapleton & Hayes (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA  AT SYDNEY

Appeal Number: EA 68 of 2009

File Number: SYC 2750 of 2007

Ms Stapleton

Appellant

And

Mr Hayes

Respondent

REASONS FOR JUDGMENT

1. On 31 March 2011, for reasons which the Court then delivered, the mother’s appeal against orders made by Moore J on 25 May 2009 was dismissed.  

2. Having dismissed the mother’s appeal, at paragraphs 163 and 166 of the Reasons for Judgment, when discussing the matter of costs, we said:

   163.The Independent Children’s Lawyer’s position was that if the appeal was unsuccessful, costs would be sought against the mother because of the filing of the four varying Notices of Appeal and the additional directions hearings that were consequently required.

   …

   166.… As we do not know what costs are pursued by the Independent Children’s Lawyer against the mother, we propose to make orders that the Independent Children’s Lawyer set out in precise details what orders are sought, such document to be filed within 21 days and for the mother to have a right of reply by written submissions within 14 days thereafter.

3. The Court then made the following orders in relation to costs:

   3.That there be no order as to costs as between the appellant and the respondent.

   4.That any application by the Independent Children’s Lawyer for costs against the mother be by way of written submission to be filed and served within 21 days.

   5.That insofar as the Independent Children’s Lawyer files any submission seeking costs against the mother, the mother file her written submissions within 14 days after receipt of those of the Independent Children’s Lawyer.

4. On 3 May 2011, the Eastern Region Appeal Registry, by way of memorandum, notified us that the time for the filing of cost submissions by the Independent Children’s Lawyer had passed and that no submissions had been filed. 

5. In the circumstances of the Independent Children’s Lawyer having filed no written submissions in relation to costs, and it now being out of time, the Independent Children’s Lawyers application for costs is dismissed and the Court will so order. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, May & Cronin JJ) delivered on 10 June 2011.

Legal Associate:       

Date:    10 June 2011