Atuk and Atuk (No. 2) - [2017] FamCA 648

FAMILY COURT OF AUSTRALIA

ATUK & ATUK (NO. 2)

[2017] FamCA 648

FAMILY LAW – COSTS – Application for costs of discrete parenting application – Where objectively at outset prospects of application poor – Consideration of general principles – Where order made for mother to pay father’s costs.

Family Law Act 1975 (Cth) s 117

Atuk & Atuk [2016] FamCA 283
Atuk & Atuk [2017] FamCA 441

Hawkins & Roe [2012] FamCAFC 77
Penfold v Penfold (1980) 144 CLR 311

APPLICANT:

Ms Atuk

RESPONDENT:

Mr Atuk

INDEPENDENT CHILDREN’S LAWYER:

Ms Truong

FILE NUMBER:

PAC

4209

2014

DATE DELIVERED:

25 August 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

By way of written submissions last received on 4 August 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Hawach of McAuley Hawach Lawyers

SOLICITOR FOR THE RESPONDENT:

Mr Atila of Atila Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Truong of Legal Aid NSW Bankstown Family Law

Orders

That within three months from this date the mother pay to the father or as he may otherwise direct in writing the sum of $3,600.00.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Atuk & Atuk (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A (b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4209 of 2014

Ms Atuk

Applicant

And

Mr Atuk

Respondent

REASONS FOR JUDGMENT

The discrete application for determination is the father’s application for costs against the mother in respect to an interim parenting issue heard on 15 May 2017 with the reasons for judgment delivered 27 June 2017: Atuk & Atuk [2017] FamCA 441. These reasons assume familiarity with those reasons for judgment and reasons for judgment delivered in relation to interim parenting orders on 29 April 2016: Atuk & Atuk [2016] FamCA 283.
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to the proceedings shall bear his or her own costs.
That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2) that provides that in proceedings under this Act, where the Court is of opinion that there are circumstances that justify it in doing so, the Court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the Court considers just.
Although s 117(2) requires a finding of justifiable circumstances as…

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: [2017] FamCA 648
Decision Date: 25 August 2017

CaseChat Overview and Summary

The Family Court of Australia, constituted by Foster J, considered a dispute between the mother and father concerning financial matters. The specific nature of the dispute leading to this judgment is not detailed in the provided text, beyond the final orders made.

The central legal issue before the court was the determination of a financial sum to be paid by the mother to the father. The court was required to decide the quantum of this payment and the timeframe within which it was to be made.

Foster J ordered that the mother pay the sum of $3,600.00 to the father, or as he may direct in writing, within three months from the date of the order. This order is subject to its formal entry into the Court’s records.

Orders

Orders of the court

That within three months from this date the mother pay to the father or as he may otherwise direct in writing the sum of $3,600.00.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.