Doge and Hornby - [2011] FMCAfam 636

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DOGE & HORNBY

[2011] FMCAfam 636

FAMILY LAW – Multiple applications – consideration of Rice & Asplund – contravention (principles of) – application for costs – application for security for costs (principles of).

Family Law Act 1975, ss.60CA, 65N, 69ZW9(5), 70NAC, 70NAD(b), 70NAE, 70NAF, 70NBA, 70NCA, 70NCB, 117
Federal Magistrates Act 1999, s.17A

Amalgamated Commercial Holdings Pty Ltd v Compas Pty Ltd & Anor [2011] FMCA 116
Child Support Registrar v Kavanos (2011) 44 Fam LR 422
D & C (2005) FLC ¶93-236
Dobbs & Brayson (2007) FLC ¶93-346
Elspeth & Peter (2007) FLC ¶93-341
Evans v Rochford (2003) 30 Fam LR 336
In the Marriage of Jones, (2001) FLC ¶93-080
In the Marriage of Luadaka (1998) 24 Fam LR 340
Miller v Harrington (2008) 220 FLR 300; 39 Fam LR 654
O’Brien & O’Brien (1993) FLC ¶92-393
Penfold v Penfold (1980) 144 CLR 311
Rice & Asplund (1979) FLC ¶90-725
Sandler & Kerrington (2007) FLC ¶93-323
SPS & PLS (2008) FLC ¶93-363

Applicant:

MS DOGE

Respondent:

MR HORNBY

File Number:

CAC 867 of 2010

Judgment of:

Neville FM

Hearing date:

25 February 2011

Date of Last Submission:

25 February 2011

Delivered at:

Brisbane

Delivered on:

30 June 2011

REPRESENTATION

Solicitor/Advocate for the Applicant:

Mr K Hubert

Solicitors for the Applicant:

Capon & Hubert

Solicitor/Advocate for the Respondent:

Mr R Friesen

Solicitors for the Respondent:

Watts McCray McGuinness Eley

ORDERS

The Father’s Application to discharge the 2006 Consent Orders be dismissed.
There be no Order for security for costs.
By way of penalty for the Contravention Application filed on 1 October 2010 the Mother is to pay the Father the sum of $328.00 within 30 days of the date of these Orders.
Both parties attend a post separation parenting course with a focus on communication. Evidence of attendance at such a course is to be provided to the Court.
Each party be restrained from filing any further Application other than enforcement of existing orders without the prior leave of the Court. Any party breaching this Order may be liable to pay the costs of the other party on an indemnity basis.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CANBERRA

CAC 867 of 2010

MS DOGE

Applicant

And

MR HORNBY

Respondent

REASONS FOR JUDGMENT

Introduction

The parties in these proceedings were once in a de facto relationship which, as it turned out, was quite a short one. It ended in October 2002. There is one child from it, [X], who was born [in] 2002.
The first application between these parties was filed in May 2004. [X]’s parents have been fighting regularly ever since, with the occasional lull in hostilities.[1]
[1] In cross-examination, Mr Hornby confirmed that the parties have been fighting since [X] was eight months old. Transcript (25^th February 2011) p.7. Ms Doge’s solicitor helpfully…

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 Doge and Hornby

Details

AGLC: Doge and Hornby [2011] FMCAfam 636
Case: [2011] FMCAfam 636
Decision Date: 30 June 2011

CaseChat Overview and Summary

Doge and Hornby involved a dispute between the parties regarding the enforcement and interpretation of previous consent orders made in 2006 concerning their children. The case was heard in the Family Court of Australia. The Father sought to discharge the 2006 Consent Orders, which had been made to govern parenting arrangements, and also sought a penalty against the Mother for what he described as a contravention of those orders. The Mother opposed these applications and counterclaimed for security for costs.

The legal issues before the court included whether the Father’s application to discharge the existing consent orders was justified, the appropriateness of ordering security for costs, the validity of the Mother's alleged contravention of the orders, and the imposition of a penalty for the contravention. The court also considered the necessity for both parties to attend a post-separation parenting course and whether further restrictions on filing applications without leave were warranted.

The court found that the Father’s application to discharge the consent orders was not substantiated, and therefore dismissed it. It declined to order security for costs, noting that the Mother's claim for costs was not pressing. Regarding the alleged contravention, the court found the Mother had indeed contravened the orders and imposed a penalty of $328.00 for the contravention. The court mandated that both parties attend a post-separation parenting course, emphasizing the importance of communication. Finally, the court restrained both parties from filing further applications without leave, with a warning of indemnity costs for any breaches of this order.

In summary, the court dismissed the Father's application to discharge the consent orders, declined to order security for costs, imposed a penalty for the contravention, mandated attendance at a parenting course, and restricted further applications without leave.

Orders

Orders of the court

The Father’s Application to discharge the 2006 Consent Orders be dismissed.

There be no Order for security for costs.

By way of penalty for the Contravention Application filed on 1 October 2010 the Mother is to pay the Father the sum of $328.00 within 30 days of the date of these Orders.

Both parties attend a post separation parenting course with a focus on communication. Evidence of attendance at such a course is to be provided to the Court.

Each party be restrained from filing any further Application other than enforcement of existing orders without the prior leave of the Court. Any party breaching this Order may be liable to pay the costs of the other party on an indemnity basis.

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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