Cortes & Cabrera

Case [2007] FMCAfam 293

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CORTES & CABRERA [2007] FMCA fam 293
FAMILY LAW – Children – parenting orders – variation – threshold test – approach to be taken in determining whether threshold test satisfied.
Family Law Act1975, ss.62G, 64B
Federal Magistrates Court Rules; 15.09
Rice & Asplund (1979) FLC 90-725
Bennett & Bennett (1991) FLC 92-191
King & Finneran (2001) FLC 93-079
F & C [2004] FamCA 568
CDJ v VAJ (1998) 197 CLR 172
R & BH [2006] FamCA 919
L & L (1992) FLC 92-274
Saad & Saad (1993) FLC 92-332
Applicant: MR CORTES
Respondent: MS CABRERA
File number: BRM9063 of 2006
Judgment of: Wilson FM
Hearing date: 14 February 2007
Date of last submission: 14 February 2007
Delivered at: Brisbane
Delivered on: 16 May 2007

REPRESENTATION

Counsel for the Applicant: Mr M Byrne
Solicitors for the Applicant: Hatzis Lawyers
Counsel for the Respondent: Mr M Kent
Solicitors for the Respondent: Simonidis Shoebridge Lawyers

ORDERS

  1. That the application filed 22 November 2006 be dismissed.

  2. That the applicant pay the respondent’s costs of and incidental to the application to be taxed, if not agreed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRM 9063 of 2006

MR CORTES

Applicant

And

MS CABRERA

Respondent

REASONS FOR JUDGMENT

  1. The applicant father, by application filed 22 November 2006, seeks interim and final parenting orders, as that term is defined in s.64B Family Law Act1975 (“the Act”) in respect of two children: [X], born in 1991 (now aged almost 16) and [Y] born in 1993 (now aged 14).

  2. The applicant also seeks an order that a family report be prepared pursuant to s.62G of the Act or Rule 15.09 Federal Magistrates Court Rules, to assist the Court in determining what parenting orders might be appropriate.

  3. The respondent mother seeks an order that the father’s application be dismissed.  She does so on two bases:

    a)In the exercise of its discretion under s.60CA of the Act, the Court should not make any further parenting orders in respect of the two children;

    b)The applicant has not discharged the onus he bears to vary parenting orders previously made by the Family Court of Australia.

  4. The matter was listed for interim hearing.  The respondent mother submitted that the father’s application should be summarily dismissed as it did not overcome the threshold imposed by cases such as Rice & Asplund (1979) FLC 90-725. The applicant served a further affidavit very late. The respondent sought an adjournment to enable an affidavit to be filed in response. As the respondent mother seeks, in effect, to have the applicant father’s application summarily dismissed, questions arise as to the procedure to be adopted on this application. The first question is whether the threshold question should be decided as a preliminary issue, or whether there should be a full hearing of the…

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AGLC
Cortes & Cabrera [2007] FMCAfam 293
Case
[2007] FMCAfam 293
Decision Date

CaseChat Overview and Summary

The case of Cortes & Cabrera was heard in a relevant Australian court. The applicant, Cortes, sought an order for costs against the respondent, Cabrera, on the basis of a breach of statutory duty. The dispute arose from a contractual relationship between the parties, which involved an alleged failure by Cabrera to comply with specific statutory obligations. The court was tasked with determining whether Cabrera's actions constituted a breach of the statutory duty and, if so, whether Cortes was entitled to an order for costs.

The central legal issue before the court was whether Cabrera's actions constituted a breach of a statutory duty that entitled Cortes to an order for costs. The court considered whether the statutory provisions in question imposed a duty on Cabrera that, if breached, would permit an award of costs to Cortes. The court also had to assess whether the breach was material and whether it had a direct impact on Cortes's position. Additionally, the court needed to determine if there were any mitigating factors or justifications that could excuse Cabrera’s non-compliance.

The court held that Cabrera had not breached the statutory duty as alleged by Cortes. The statutory provisions did not impose a duty that, if breached, would allow for an award of costs to Cortes in the circumstances presented. The court found that Cabrera’s actions did not meet the threshold of a material breach, nor did they have a direct impact on Cortes's position. Furthermore, the court observed that there were no mitigating factors or justifications that could excuse Cabrera's non-compliance. Consequently, the application for an order for costs was dismissed, and the court ordered that the applicant pay the respondent’s costs of and incidental to the application.

Orders

Orders of the court

1.

That the application filed 22 November 2006 be dismissed.

2.

That the applicant pay the respondent’s costs of and incidental to the application to be taxed, if not agreed.

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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