DRAKE & WILSON

[2015] FCCA 841

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRAKE & WILSON [2015] FCCA 841

Catchwords:
FAMILY LAW – Application for summary dismissal – costs ruling.

Legislation:  
Federal Circuit Court of Australia Act 1999, s.17A

Family Law Act 1975, s.117(2)

Carnell v Carnell [2006] FMCAfam 476

Applicant: MR DRAKE

Respondent: MS WILSON

File Number: MLC 1665 of 2013

Judgment of: Judge Burchardt

Hearing date: 16 March 2015

Date of Last Submission: 16 March 2015

Delivered at: Melbourne

Delivered on: 16 March 2015

REPRESENTATION

The Applicant: No Appearance

Counsel for the Respondent: Ms Devine

Solicitors for the Respondent: Berry Family Law

ORDERS

1. All extant applications are dismissed pursuant to s.17A of the Federal Circuit Court of Australia Act 1999.

2. The applicant pay the respondent’s costs to be taxed in an indemnity basis.

3. Costs on an indemnity basis are to be fixed by the Court in Chambers.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 1665 of 2013

MR DRAKE

Applicant

And

MS WILSON

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The respondent, Ms Wilson, seeks the summary dismissal of Mr Drake's Initiating Application, filed in the Victorian Magistrates’ Court on 21 August 2014, and subsequently transferred to this Court.  It will be necessary to return to the form of orders sought in due course, but they may be summarised as seeking what is sometimes called substitution orders in respect of payments made on behalf of two children, and an application to go back well before the

   
   

   18 month statutory time limit in respect of the applicant father’s obligations (or otherwise) to support his partner and her children arising from 1 July 2007 onwards.  There was also an interim application for a stay of payment, and a proposal that $50 per week be paid instead. 

2. The affidavit filed in support of that application is relatively lengthy. 

   
   

   It deposes to a lengthy history of legal proceedings between the parties, although, as has become apparent, it was by no means complete in that regard.  There is a fair amount said by way of complaint about the respondent mother and her capacities as a mother in the way she treats the children and the like. 

3. The gravamen of the affidavit, so far as it relates to order 1, is at paragraph 7 and essentially notes the proposition that the father would be much happier if payments made on behalf of his daughter – and I always struggle with these, particularly the Irish names. 

4. RECORDED     :   NOT TRANSCRIBED

5. HIS HONOUR:   X, yes, born on (omitted) 1998.  If he could make payments directly to such people as orthodontists and the like, rather than paying child support to the mother.  In respect of Y, the same application is made, although Y is now well over 18, having been born on (omitted) 1995.  And, indeed, she was well over 18 at the time…