Gorley & Gorley (No 2) - [2023] FedCFamC1F 770

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gorley & Gorley (No 2) [2023] FedCFamC1F 770

File number: SYC 8819 of 2022

Judgment of: MCGUIRE J

Date of judgment: 7 September 2023

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Costs – Review Application – Consideration of s 117(2A) – No order for costs

Legislation: Family Law Act (1975) (Cth) s 117

Cases Cited: Gorley & Gorley [2023] FedCFamC1F 523

Division: Division 1 First Instance

Number of paragraphs: 22

Date of hearing: 22 August 2023

Place: Melbourne

Solicitor for the Applicant: Barkus Doolan Winning

Solicitor for the Respondent: Matthews Folbigg Pty Ltd
ORDERS

SYC 8819 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR GORLEY

Applicant

AND:
MS GORLEY

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

7 SEPTEMBER 2023

THE COURT ORDERS THAT:
1.The father’s Application in a Proceeding dated 26 July 2023 be dismissed.

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 Gorley & Gorley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCGUIRE J
APPLICATION

The father in an Application in a Proceeding filed 26 July 2023, and supported by his affidavit of the same date, applies for costs in respect of a Review application brought by the wife and determined by my Reasons and Orders of 29 June 2023. The application encompasses the costs of a Stay application brought by the mother unsuccessfully before a Senior Judicial Registrar.
The father quantifies the costs application in a quantum of $10,670 in respect of the Review application and a further $7,040 for the Stay application described by his counsel as “party/party basis”. Alternatively, he seeks orders according to scale on a quantum of $4,919.41 on the Review application and $3,142 on the Stay application.
The application is opposed by the mother.
There are further substantive parenting proceedings between the parties in respect of three children.
On 31 March 2023 the Senior Judicial Registrar (“SJR”) made orders that the father spend time with the children two hours per week to be professionally supervised on an interim basis after a defended interim hearing.
The Review application was heard before me on 7 June 2023 and in my judgment handed down on 29 June 2023 the Review application was effectively dismissed leaving the…

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 Gorley & Gorley (No 2)

Details

AGLC: Gorley & Gorley (No 2) [2023] FedCFamC1F 770
Case: [2023] FedCFamC1F 770
Decision Date

CaseChat Overview and Summary

In the case of Gorley & Gorley (No 2), the father and mother were involved in a dispute concerning parenting and property matters, which came before the court. The father's counsel submitted that, between the determination of a previous judicial review and the subsequent review hearing, he had made a proposal to the mother to withdraw her application. The mother, however, did not take up the offer and proceeded with her application. The court was required to decide on the issue of costs in the context of the proceedings and whether the mother's application was merited enough to warrant an award of costs against her.

The legal issue before the court was whether the mother should be penalised with costs for pursuing her application, despite the father's proposal to withdraw his application. The court needed to consider the distinction between parenting and property matters in relation to costs, as well as the importance of not discouraging a parent from properly arguing matters concerning their children due to the fear of incurring costs. The court had to assess the merits of the mother's application and whether it was arguable enough to warrant an award of costs.

The court held that the distinction between parenting and property matters concerning costs was a crucial one. In this case, the mother had brought an arguable prima facie case, and the court was not persuaded that it should exercise its discretion in favour of an award for costs. The court found that the mother's application, while ultimately unsuccessful, was not unmeritorious. Consequently, the application for costs was dismissed. The court also noted that its findings regarding the merits of the mother's review application should similarly extend to her application for a stay, which was also unsuccessful but not without merit, hence no costs should flow from this application.

The court dismissed the father's application for costs, finding that the mother's applications, while unsuccessful, were not without merit and did not warrant an award of costs. The court's decision emphasised the importance of not discouraging parents from properly arguing matters concerning their children due to the fear of incurring costs, and highlighted the distinction between parenting and property matters in relation to costs.

Orders

Orders of the court

Full text does not contain this section.

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

The father's Counsel asserts, not challenged, that between the determination of the SJR and the Review hearing before me the father's Counsel made an open ‘proposal’ inviting the mother to withdraw her application. Again, however, the distinction between parenting and property matters coming before these courts in respect of costs is, in my view, a crucial one and again where a parent should not be dissuaded by the spectre of costs by properly arguing matters of concern in respect of children.CONCLUSION Taking into account all of the matters under section 117(2A) of the Act and with some emphasis on the fact that the mother brought an arguable prima facie case for my determination then I am not persuaded that this is a matter that should exercise my discretion in favour of an award for costs. The application will be dismissed. If it be required that I deal separately with the costs of the Stay application then I am of the view that my findings above in respect of the merits of the mother’s Review application should extend similarly to her application for a Stay, which whilst unsuccessful, was also not unmeritorious and hence costs should not flow.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	SYC 8819 of 2022
Judgment of:	MCGUIRE J
Date of judgment:	7 September 2023
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Costs – Review Application – Consideration of s 117(2A) – No order for costs
Legislation:	Family Law Act (1975) (Cth) s 117
Cases Cited:	Gorley & Gorley [2023] FedCFamC1F 523
Division:	Division 1 First Instance
Number of paragraphs:	22
Date of hearing:	22 August 2023
Place:	Melbourne
Solicitor for the Applicant:	Barkus Doolan Winning
Solicitor for the Respondent:	Matthews Folbigg Pty Ltd

SYC 8819 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR GORLEY Applicant
AND:	MS GORLEY Respondent

ORDER MADE BY:	MCGUIRE J
DATE OF ORDER:	7 SEPTEMBER 2023