GEMUNU & GUNASEKARA (No.2) - [2019] FCCA 344

FEDERAL CIRCUIT COURT OF AUSTRALIA

GEMUNU & GUNASEKARA (No.2)

[2019] FCCA 344

Catchwords:

FAMILY LAW – Costs – application for costs after nine day parenting trial.

Legislation:

Family Law Act 1975 (Cth), s.117.

Cases cited:

Gunasekara & Gemunu [2018] FCCA 131

Eades & Wrenstead [2014] FCWA 64

Wrenstead & Eades [2016] FamCAFC 46

Applicant:

MS GEMUNU

Respondent:

MR GUNASEKARA

File Number:

DGC 2847 of 2016

Judgment of:

Judge Harland

Hearing date:

18 September 2018

Date of Last Submission:

14 January 2019

Delivered at:

Melbourne

Delivered on:

15 February 2019

REPRESENTATION

Counsel for the Applicant:

Dr O'Brien

Solicitors for the Applicant:

D & M LAWYERS

Solicitors for the Respondent:

Christopher William Legal

ORDERS

That the husband pay the wife’s costs fixed in the sum of $41,100, which sum be deducted from the husband’s share from the sale of the properties or final property orders, whichever is earlier.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 2847 of 2016

MS GEMUNU

Applicant

And

MR GUNASEKARA

Respondent

REASONS FOR JUDGMENT

Proceedings for with respect to parenting orders were commenced by the father on 13 September 2016. The matter initially proceeded to final hearing on 25 October 2017 for three days. The final hearing was extended for a further six days part heard between 25 October 2017 and 13 December 2017.
In his initiating application the father sought sole parental responsibility of the three children of the marriage. He also sought for the children to live with him and that the mother’s time with the children be supervised.
On 17 January 2018 I made orders in chambers requiring the father to bring the children to the childcare facility at the court on 23 January 2018, as that was the day that I proposed to deliver reasons for judgment, and those orders also required all parties and their legal representatives to attend in person on 23 January 2018. I also noted that the Independent Children’s Lawyer (“ICL”) would explain the orders to the children with the assistance of a family consultant. The father did not comply with that order and did not bring the children to court, despite emailing Chambers stating he would attend with the children.
On 23 January 2018 I made final parenting orders. These reasons should be read with those reasons[1] for background. I ordered that the children live with the mother and for the children initially to spend no time and have no communication with the father for three months, then to have professionally supervised time for a further three months before progressing to unsupervised weekend time and time on other occasions. Due to the father and the children’s non-attendance at court on 23 January 2018 it was necessary to issue a recovery order for the children. The Australian Federal Police recovered the children. The father has not spent time with the children since. He…

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 GEMUNU & GUNASEKARA (No.2)

Details

AGLC: GEMUNU & GUNASEKARA (No.2) [2019] FCCA 344
Case: [2019] FCCA 344
Decision Date: 15 February 2019

CaseChat Overview and Summary

In *Gemunu & Gunasekara (No.2)*, Judge Harland of the Family Court of Australia considered an application for costs following a nine-day parenting trial. The dispute concerned the allocation of costs between the husband and wife after the conclusion of the substantive proceedings.

The central legal issue before the Court was whether an order for costs should be made against one party in favour of the other, and if so, the quantum of those costs. This required the Court to assess the conduct of the parties during the litigation and consider the principles governing cost orders in family law matters.

Judge Harland ordered that the husband pay the wife's costs fixed at $41,100. This sum was to be deducted from the husband's share of the proceeds from the sale of properties or from any final property orders, whichever event occurred first.

Orders

Orders of the court

That the husband pay the wife’s costs fixed in the sum of $41,100, which sum be deducted from the husband’s share from the sale of the properties or final property orders, whichever is earlier.

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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