FLAST CASE SUMMARY: Hyams & Deller 2019: Appeals- SolicitorsConduct-Parenting-Costs

Hyams & Deller [2019] FamCAFC 18 (7 February 2019)

FACTS:

Parenting Appeal:

  • 26 October 2018, a notice of appeal was filed by the mother against parenting orders made on 2 October 2018.
  • The complaints relate to conduct by a previous solicitor.
  • The mother states that her lawyer acted without instructions in agreeing to the orders that the Judge made, and that flows over to the two orders, which were not made by consent.

Costs:

  • The father seeks costs on an indemnity basis for the appeal.
  • The mother opposes the application for indemnity costs; her reasoning is her financial situation. The mother obtains a benefit of $350 per week maternity allowance, a house property which has an equity of $100,000, no other major assets.
  • The father’s financial situation is he has equity of  $100,000 in a house property, and earns $1,000 per week in income.
  • The mother does not oppose an order for costs calculated on a party/party basis.

ISSUE:

Parenting:

  • Was there an error by the trial judge?
  • On what basis can the appeal proceed?

Costs:

  • Should indemnity costs be ordered?

HELD:

Parenting

Parenting Appeal dismissed.

The appeal should never have been brought forward as the complaints relate to conduct by a previous solicitor; there is no error by the trial judge, which would allow an appeal. However, the court states the mother has other avenues to pursue if so advised.

Costs

Indemnity costs ordered for the Mother to pay $2000.

The Father applied for the indemnity costs for the appeal for it was ‘doomed’ to fail and should never been brought forward. The court took into account the mother’s limited financial position, however  ‘impecuniosity is not a bar to a costs order being made when it is otherwise justified’(D & D (Costs) (No  2)(2010) FLC 93-435). The court was satisfied that exceptional circumstances were established in this case to warrant indemnity costs.

 

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