Fleming & Burnett (No 2) - [2022] FedCFamC2F 1080

Federal Circuit and Family Court of Australia
(DIVISION 2)
Fleming & Burnett (No 2) [2022] FedCFamC2F 1080

File number(s): ADC 1787 of 2021

Judgment of: DEPUTY CHIEF JUDGE MCCLELLAND

Date of judgment: 16 August 2022

Catchwords: FAMILY LAW – COSTS – Review of a registrar’s decision – Where the father was wholly unsuccessful – Father ordered to pay mother’s costs in a fixed sum

Legislation:
Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17

Family Law Rules 2004 (Cth) r 19.18

Cases cited:
Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432

Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123; [2005] FamCA 158

Fleming & Burnett [2022] FedCFamC2F 276

Hitch & Hitch (2012) 47 Fam LR 603; [2012] FamCAFC 124

Idoport Pty Limited v National Australia Bank Limited & Ors [2007] NSWSC 23

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Prantage v Prantage (Costs) [2014] FamCA 850

Robinson & Higginbotham (1991) FLC 92-209; [1991] FamCA 5

Stoian v Fiening (Costs) [2014] FamCA 944

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2011] FamCAFC 126

Division: Division 2 Family Law

Number of paragraphs: 28

Date of last submission/s: 13 April 2022

Date of hearing: On the papers

Place: Sydney

The Applicant: Litigant in person

Solicitor for the Respondent: Mr Omerod of Adelaide Family Law
ORDERS

ADC 1787 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR FLEMING

Applicant

AND:
MS BURNETT

Respondent

order made by:

DEPUTY CHIEF JUDGE MCCLELLAND

DATE OF ORDER:

16 AUgust 2022

THE COURT ORDERS THAT:
1.Within seven (7) days of the date of these orders, the applicant father pay the respondent mother’s costs in the amount of $4,163.02 to the solicitor’s trust account of Adelaide Family Law.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fleming & Burnett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MCCLELLAND:
INTRODUCTION

By orders made on 15 March 2022, I dismissed an Application for Review of a decision by a senior judicial registrar dated 3 December 2021 as filed by the applicant,…

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 Fleming & Burnett (No 2)

Details

AGLC: Fleming & Burnett (No 2) [2022] FedCFamC2F 1080
Case: [2022] FedCFamC2F 1080
Decision Date

CaseChat Overview and Summary

This case involved Mr. Fleming and Ms. Burnett, who were engaged in family law proceedings before the Federal Circuit and Family Court of Australia. The court was asked to review a registrar's decision on parenting and property orders, which was initially dismissed by the Deputy Chief Judge McClelland on March 15, 2022. The court varied the orders to require supervised visitation for the father due to his unilateral retention of their child, X, contrary to court orders. Ms. Burnett subsequently sought an order for costs from Mr. Fleming, which led to the court's consideration of the legal principles and factors relevant to awarding costs in family law proceedings.

The court considered several factors outlined in section 117(2A) of the Family Law Act 1975, including the financial circumstances of both parties, their conduct during the proceedings, and whether either party had been wholly unsuccessful. The court found that Mr. Fleming was wholly unsuccessful in his application for review and that his conduct contributed to additional expenses incurred by Ms. Burnett. The court also noted that Ms. Burnett's application and associated costs were necessitated by Mr. Fleming's conduct in retaining their child against court orders. Based on these considerations, the court determined that it was in the interests of justice to make an order for costs in favor of Ms. Burnett.

In quantifying the costs, the court followed principles established in previous cases, which emphasize the importance of a logical, fair, and reasonable approach in estimating costs. The court accepted the mother's submissions and schedule of costs, determining that the amount of $4,163 was appropriate. The court did not, however, make an order for distribution of costs from a controlled monies account, as it had not been addressed in the submissions.

Ultimately, the court ordered Mr. Fleming to pay Ms. Burnett's costs in the amount of $4,163 within 28 days of the date of the orders. The decision reflects the court's consideration of relevant legal principles and the specific circumstances of the case in making a just and reasonable order for costs.

Orders