Burnham and Mullane - [2016] FamCA 908

FAMILY COURT OF AUSTRALIA

BURNHAM & MULLANE

[2016] FamCA 908

FAMILY LAW – COSTS – Where the Court dismissed the father’s application to re-open parenting proceedings –Where the mother seeks her costs on an indemnity basis –Where the Court is not satisfied that the matter falls within the exceptional category of cases that justify such an order – Where the father was wholly unsuccessful – Where the father was on notice that the mother intended to rely upon the principles of Rice & Asplund (1979) FLC 90-725 – Where the Court has had regard to the father’s conduct in the events said to have necessitated the filing of his application – Orders made for the father to pay the mother’s costs on a party/party basis.

Family Law Act 1975 (Cth) s 117

Cross & Beaumont (2008) 39 Fam LR 389
Colgate Palmolive Company and Anor v Cussons Pty Limited (1993) 46 FCR 225
Fennessy & Gregorian (2009) FLC 93-399
Hawkins & Roe (2012) 47 Fam LR 526
In the marriage of Kohan & Kohan (1993) FLC 92-340
Limousin & Limousin (Costs) (2008) 38 Fam LR 478
Melville & Dent (No.2) [2009] FamCA 81
Mullane & Burnham [2016] FamCA 574
Rice & Asplund (1979) FLC 90-725
Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189
Wrensted & Eades (2016) FLC 93-697
Yunghanns and Ors & Yunghanns and Ors (2000) FLC 93-029

APPLICANT:

Ms Burnham

RESPONDENT:

Mr Mullane

FILE NUMBER:

SYC

4673

2012

DATE DELIVERED:

28 October 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

In chambers by way of written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Kennedy

SOLICITOR FOR THE APPLICANT:

Armstrong Legal

SOLICITOR FOR THE RESPONDENT:

Mills Oakley Lawyers

Orders

The father is to pay the costs of the mother of the Initiating Application filed 27 April 2016 on a party/party basis as agreed or assessed.

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 Burnham & Mullane 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 SYDNEY

FILE NUMBER: SYC 4673 of 2012

Ms Burnham

Applicant

And

Mr Mullane

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns an application for costs filed by the mother in respect to the dismissal of an Initiating Application filed by the father on 27 April 2016. The father’s application was dismissed on the basis that, having regard to the principles of Rice & Asplund,[1] the father had not established that there had been a sufficient change of circumstances justifying a…

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 Burnham and Mullane

Details

AGLC: Burnham and Mullane [2016] FamCA 908
Case: [2016] FamCA 908
Decision Date: 28 October 2016

CaseChat Overview and Summary

In *Burnham and Mullane*, heard by McClelland J in the Federal Circuit Court of Australia, the dispute concerned an application filed by the mother on 27 April 2016. The specific nature of the dispute is not detailed in the provided text, but the outcome relates to the costs associated with this application.

The primary legal issue before the court was the determination of costs following the mother's Initiating Application. The court was required to decide whether the father should bear the costs of this application and, if so, on what basis.

McClelland J ordered that the father pay the costs of the mother in relation to the Initiating Application filed on 27 April 2016. These costs were to be assessed on a party/party basis, meaning they would be limited to those costs that were reasonably incurred and necessary for the proceedings, as opposed to solicitor/client costs which are generally broader. The order also noted that the precise form of the order was subject to its formal entry into the Court’s records.

Orders

Orders of the court

The father is to pay the costs of the mother of the Initiating Application filed 27 April 2016 on a party/party basis as agreed or assessed.

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

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