Bolinger v Ivy - [2008] FamCA 274

FAMILY COURT OF AUSTRALIA

BOLINGER & IVY

[2008] FamCA 274

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT:

Ms Bolinger

RESPONDENT:

Mr Ivy

FILE NUMBER:

MLF

2145

2006

DATE DELIVERED:

23 April 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Carter J

HEARING DATE:

By written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hamilton

SOLICITOR FOR THE APPLICANT:

Berryman Partners

COUNSEL FOR THE RESPONDENT:

Mr Mawson

SOLICITOR FOR THE RESPONDENT:

Septimus Jones & Lee

Orders

Upon reading the written submissions of the husband and the wife

IT IS ORDERED

That within 45 days of this day the husband pay the wife’s costs of and incidental to the parties’ respective applications for parenting orders as and from 22 August 2007, including costs relating to the parties’ respective written submissions as to costs, such costs to be on a party/party basis, as agreed, or failing agreement, as assessed pursuant to the Family Law Rules 2004.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2145 of 2006

MS BOLINGER

Applicant

and

MR IVY

Respondent

Reserved Judgment

(Costs)

Delivered in Chambers

Ms Bolinger (“the wife”) seeks an order for costs in the sum of $30,165.86 against Mr Ivy (“the husband”). The husband resists the application.

Background

The husband was born in September 1975 and the wife was born in March 1976. They married in April 2003, having cohabited for some time beforehand. They have one child, a daughter who was born in August 2005. Final separation took place on 7 April 2006 when the wife and the child moved to live in New South Wales. The wife was originally from New South Wales and she moved back to live at her parents’ home following the separation.
At the time of the separation the child was about seven and a half months of age. She has continued to live in New South Wales with her mother at all times following separation, save for occasions when she spent time with the husband.
The wife has repartnered but, so far as I know, the husband has not.
Following separation, the wife brought the child to Melbourne to see the husband in April, May, June, July and August 2006. This was at the wife’s own expense.
On 11 July 2006 the husband filed applications in the Melbourne Registry seeking interim and final orders relating to children and property matters. Amongst other things he sought that the child return to Melbourne and that the husband and the wife have equal shared time with her on a rotating weekly basis. That application was never amended.
On 30 August 2006 the wife filed responses seeking interim and final orders relating to both children and property matters. Amongst other things the wife sought that the child live with her in New South Wales. She proposed on an interim basis,…

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.

Continue reading Bolinger v Ivy

Details

AGLC: Bolinger v Ivy [2008] FamCA 274
Case: [2008] FamCA 274
Decision Date: 23 April 2008

CaseChat Overview and Summary

In *Bolinger v Ivy*, the husband and wife were parties to proceedings concerning parenting orders. The court was required to determine the costs associated with their respective applications for these orders.

The central legal issue before the court was the allocation of costs incurred by the parties in relation to their parenting applications, specifically from 22 August 2007 onwards, including the costs of written submissions on the issue of costs.

The court ordered that the husband pay the wife's costs of and incidental to the parenting applications. These costs were to be on a party/party basis and were to be agreed upon by the parties within 45 days of the order. If agreement could not be reached, the costs were to be assessed in accordance with the *Family Law Rules 2004*.

Orders

Orders of the court

Upon reading the written submissions of the husband and the wife

IT IS ORDERED

That within 45 days of this day the husband pay the wife’s costs of and incidental to the parties’ respective applications for parenting orders as and from 22 August 2007, including costs relating to the parties’ respective written submissions as to costs, such costs to be on a party/party basis, as agreed, or failing agreement, as assessed pursuant to the Family Law Rules 2004.

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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