DRURY & BENSON (No.3) - [2020] FCCA 1925

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRURY & BENSON (No.3)

[2020] FCCA 1925

Catchwords:
FAMILY LAW – Costs – where the father sought to re-agitate parenting proceedings – where the father’s applications were dismissed - where the father has been wholly unsuccessful in the proceedings – where the mother sought an order for costs which departed from the Federal Circuit Court Scale – costs ordered pursuant to the Federal Circuit Court Scale.

Legislation:

Family Law Act 1975 (Cth)
Federal Circuit Court Rules 2001 (Cth)

Colgate-Palmolive v Cussons Pty Ltd [1993] FCA 536

Applicant:

MS DRURY

Respondent:

MR BENSON

File Number:

ADC 3749 of 2015

Judgment of:

Judge Kari

Hearing date:

24 June 2020

Date of Last Submission:

24 June 2020

Delivered at:

Adelaide

Delivered on:

25 June 2020

REPRESENTATION

Counsel for the Applicant:

Ms Pyke QC

Solicitors for the Applicant:

D’Angelo Lawyers

Counsel for the Respondent:

Mr Praolini

Solicitors for the Respondent:

Kennedy Partners

ORDERS

That the Respondent pay the Applicant’s costs fixed in the amount of TWENTY ONE THOUSAND EIGHT HUNDRED AND EIGHTY SIX DOLLARS ($21,886), with such sum to be paid no later than 27 August 2020 to the trust account of D’Angelo Lawyers.
That all applications for costs with respect to the parenting proceedings be otherwise dismissed.
That all outstanding interim applications be adjourned to 9:15am on 23 July 2020.

IT IS NOTED that publication of this judgment under the pseudonym Drury & Benson (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADC 3749 of 2015

MS DRURY

Applicant

And

MR BENSON

Respondent

EX TEMPORE REASONS FOR JUDGMENT

As I indicated yesterday at the conclusion of submissions, I am satisfied that it is appropriate to make a costs order pursuant to the Federal Circuit Court scale in this matter with respect to both the parenting applications, which were all dismissed by my orders made on the 29^th of November 2019, together with orders for costs in relation to the costs application.
In being satisfied that it is appropriate to make those orders, I have had regard to those matters set out in section 117 of the Family Law Act 1975 (Cth) (‘the Act’), and in particular those matters set out in section 117(2A).
By way of background, as the parties know, these proceedings at the moment seem to be having a recurring history before me.
The parenting aspects of the matter, however, were a discrete issue and my reasons with respect to costs, should be read in conjunction with the reasons that I delivered on the 29^th of November 2019, bearing in mind that those reasons set out the history of the parenting proceedings and how it came to be that those proceedings were before me, having been decided previously by his Honour Justice Berman at the conclusion of a trial. I do not propose to repeat those matters in these reasons.
Suffice to say that the parenting applications were instituted…

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 DRURY & BENSON (No.3)

Details

AGLC: DRURY & BENSON (No.3) [2020] FCCA 1925
Case: [2020] FCCA 1925
Decision Date: 25 June 2020

CaseChat Overview and Summary

In the matter of *DRURY & BENSON (No.3)*, Judge Kari considered an application for costs. The specific nature of the underlying dispute between the Applicant and the Respondent is not detailed in the provided text, beyond the fact that it involved parenting proceedings.

The primary legal issue before the court was the determination of costs in relation to the parenting proceedings. The court was required to decide whether to award costs to the Applicant and, if so, in what amount, and to address any other outstanding applications for costs.

Judge Kari ordered that the Respondent pay the Applicant's costs, fixing the sum at $21,886, with payment due by 27 August 2020 to the trust account of D’Angelo Lawyers. The court further ordered that all other applications for costs concerning the parenting proceedings be dismissed. Additionally, all outstanding interim applications were adjourned to 23 July 2020.

Orders

Orders of the court

That the Respondent pay the Applicant’s costs fixed in the amount of TWENTY ONE THOUSAND EIGHT HUNDRED AND EIGHTY SIX DOLLARS ($21,886), with such sum to be paid no later than 27 August 2020 to the trust account of D’Angelo Lawyers.

That all applications for costs with respect to the parenting proceedings be otherwise dismissed.

That all outstanding interim applications be adjourned to 9:15am on 23 July 2020.

Background

Background to the litigation

Full text does not contain this section.

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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