Clayton and Bant - [2019] FamCA 891

FAMILY COURT OF AUSTRALIA

CLAYTON & BANT

[2019] FamCA 891

FAMILY LAW – COSTS – Where an appeal against parenting orders in this matter was upheld on limited grounds and set down for a re-trial – Where the father was also substantially unsuccessful after a re-trial of the matter – Where the father appealed against the orders made at the re-trial and the appeal has been determined – Where the father was not successful on that appeal – Where the mother seeks her costs of those parenting proceedings – Where the significant difference in financial circumstances of the parties, the father’s successful appeal in relation to the property proceedings and the father’s intentions behind the litigation justify a costs order in the mother’s favour.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT:

Ms Clayton

RESPONDENT:

Mr Bant

FILE NUMBER:

LEC

310

2013

DATE DELIVERED:

27 November 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

10 December 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Comerford

Parker & Kissane Solicitors

SOLICITOR FOR THE RESPONDENT:

Ms Ali

Watts McCray Lawyers

Orders

That within thirty (30) days, the Respondent father pay the costs of the Applicant mother of and incidental to the parenting proceedings before me from 3 November 2016, to the date of Judgment, being 18 October 2018, fixed in the sum of $160,665.12.

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 Clayton & Bant 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 BRISBANE

FILE NUMBER: LEC 310 of 2013

Ms Clayton

Applicant

And

Mr Bant

Respondent

REASONS FOR JUDGMENT

These are my reasons for judgment in the determination of an application by the Applicant mother for the Respondent father to pay her costs of the parenting orders proceedings heard and determined by me by orders made on 18 October 2018 for reasons published the same day.
Those parenting orders I made determined parenting proceedings between the mother and the father in respect of their only child, a daughter born in 2009. The proceedings had initially been commenced by the mother in 2013. On 19 November 2013, Kent J of this Court made final parenting orders between the parties. By his Honour’s Orders, the child was to live with the mother and to spend supervised time with the father only in Australia under fairly strict conditions.
The father appealed against Kent J’s Orders and was successful to a limited degree, with the Full Court setting aside some…

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 Clayton and Bant

Details

AGLC: Clayton and Bant [2019] FamCA 891
Case: [2019] FamCA 891
Decision Date: 27 November 2019

CaseChat Overview and Summary

The proceedings before Forrest J concerned a dispute between the Applicant mother and the Respondent father regarding parenting matters. The court was required to determine the quantum of costs to be paid by the Respondent father to the Applicant mother in relation to the parenting proceedings.

The central legal issue before the court was the assessment and award of costs incurred by the Applicant mother in the parenting proceedings. This involved considering the nature of the proceedings, the duration, and the overall circumstances to arrive at a just and reasonable sum.

Forrest J ordered that the Respondent father pay the costs of the Applicant mother, fixed in the sum of $160,665.12. These costs were to be paid within thirty days of the order and encompassed all costs incidental to the parenting proceedings from 3 November 2016 up to the date of judgment, 18 October 2018.

Orders

Orders of the court

That within thirty (30) days, the Respondent father pay the costs of the Applicant mother of and incidental to the parenting proceedings before me from 3 November 2016, to the date of Judgment, being 18 October 2018, fixed in the sum of $160,665.12.

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

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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