Franco & Daley (No 2) - [2024] FedCFamC1F 20

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Franco & Daley (No 2) [2024] FedCFamC1F 20

File number(s): MLC 9994 of 2020

Judgment of: MCNAB J

Date of judgment: 23 January 2024

Catchwords: FAMILY LAW – PARENTING –COSTS – Application for a stay – application seeks orders in relation to matters dealt with on a trial basis – application dismissed – indemnity costs ordered by reason of the unreasonable conduct of the applicant.

Legislation:
Family Law Act 1975 (Cth) ss 117, s 1172A

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

Cases cited:
Kohan & Kohan [1992] FamCA 116; (1993) FLC 92–340

Prantage & Prantage (2013) FLC 93–544; [2013] FamCAFC 105

Stasiuk & Guild [2021] FamCAFC 62

Division: Division 1 First Instance

Number of paragraphs: 14

Date of last submission/s: 23 January 2024

Date of hearing: 23 January 2024

Place: Melbourne

The Applicant: Litigant in Person

Counsel for the First Respondent: Mr MacDonald

Solicitor for the First Respondent: Pearsons Lawyers Pty Ltd

Counsel for the Second Respondent: Ms Clark

Solicitor for the Second Respondent Blackwood Family Lawyers

Counsel for the Independent Children’s Lawyer Mr Dunstan

Solicitor for the Independent Children’s Lawyer Bowlen Dunstan And Associates Pty
ORDERS

MLC 9994 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS DALEY
Applicant

AND:
MS FRANCO
First Respondent

MR DALEY
Second Respondent

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

23 JANUARY 2024

THE COURT ORDERS THAT:
1.The applicant mother’s Application in a Proceeding filed 5 January 2024 be dismissed.
2.The applicant mother pay the costs of the first respondent maternal grandmother fixed in the sum of $3,750.
3.The applicant mother pay the costs of the second respondent father fixed in the sum of $9,000.
4.The costs ordered in paragraphs 2 and 3 herein be paid from the applicant mother’s final property settlement ordered on 8 December 2023.

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 Franco & Daley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DELIVERED EX TEMPORE
(Revised from Transcript)
McNab J
BACKGROUND

On 8 December 2023, the Court made final orders in respect of parenting and property and reserved the question of costs and invited submissions in relation to costs. On 2 January 2024, the applicant mother…

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 Franco & Daley (No 2)

Details

AGLC: Franco & Daley (No 2) [2024] FedCFamC1F 20
Case: [2024] FedCFamC1F 20
Decision Date: 23 January 2024

CaseChat Overview and Summary

In the matter of Ms Daley versus Ms Franco and Mr Daley, the Federal Circuit and Family Court of Australia dealt with an application from the mother, Ms Daley, for a stay of certain matters in a parenting dispute. The application sought orders concerning issues that had already been addressed on a trial basis. The court was required to decide whether the application should proceed and whether the mother's conduct warranted an order for costs.

The primary issue before the court was whether the application for a stay should be granted. The court considered the mother's conduct in bringing the application, which was seen as unreasonable given that the issues had already been decided on a trial basis. The court also considered the implications of the mother's conduct on the administration of justice and the need to discourage such conduct in future proceedings. The court found that the mother's application was an abuse of process and dismissed the application accordingly.

The court ordered that the mother's application be dismissed and that she pay costs to both the grandmother and the father, amounting to $3,750 and $9,000 respectively. The court reasoned that the mother's conduct was unreasonable and had wasted the court's time, justifying an order for indemnity costs. The court further directed that these costs be paid from the mother's final property settlement ordered on 8 December 2023. The form of the order is subject to the entry in the Court’s records and may be subject to review or variation as permitted by the relevant rules.

Orders

Orders of the court

MLC 9994 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS DALEY

Applicant

AND:

MS FRANCO

First Respondent

MR DALEY

Second Respondent

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

23 JANUARY 2024

THE COURT ORDERS THAT:

1. The applicant mother’s Application in a Proceeding filed 5 January 2024 be dismissed.

2. The applicant mother pay the costs of the first respondent maternal grandmother fixed in the sum of $3,750.

3. The applicant mother pay the costs of the second respondent father fixed in the sum of $9,000.

4. The costs ordered in paragraphs 2 and 3 herein be paid from the applicant mother’s final property settlement ordered on 8 December 2023.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	MLC 9994 of 2020
Judgment of:	MCNAB J
Date of judgment:	23 January 2024
Catchwords:	FAMILY LAW – PARENTING –COSTS – Application for a stay – application seeks orders in relation to matters dealt with on a trial basis – application dismissed – indemnity costs ordered by reason of the unreasonable conduct of the applicant.
Legislation:	Family Law Act 1975 (Cth) ss 117, s 1172A Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth))
Cases cited:	Kohan & Kohan [1992] FamCA 116; (1993) FLC 92–340 Prantage & Prantage (2013) FLC 93–544; [2013] FamCAFC 105 Stasiuk & Guild [2021] FamCAFC 62
Division:	Division 1 First Instance
Number of paragraphs:	14
Date of last submission/s:	23 January 2024
Date of hearing:	23 January 2024
Place:	Melbourne
The Applicant:	Litigant in Person
Counsel for the First Respondent:	Mr MacDonald
Solicitor for the First Respondent:	Pearsons Lawyers Pty Ltd
Counsel for the Second Respondent:	Ms Clark
Solicitor for the Second Respondent	Blackwood Family Lawyers
Counsel for the Independent Children’s Lawyer	Mr Dunstan
Solicitor for the Independent Children’s Lawyer	Bowlen Dunstan And Associates Pty

MLC 9994 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS DALEY Applicant
AND:	MS FRANCO First Respondent MR DALEY Second Respondent

ORDER MADE BY:	MCNAB J
DATE OF ORDER:	23 JANUARY 2024