Green and Kettle - [2013] FamCA 913

FAMILY COURT OF AUSTRALIA

GREEN & KETTLE

[2013] FamCA 913

FAMILY LAW – APPLICATION IN A CASE – COSTS – practice and procedure - father’s application in a case unsuccessful – father did not seek leave to file application in accordance with previous orders – financial circumstances of each party considered – father given three months to pay the mother’s costs

Family Law Act 1975 (Cth)

APPLICANT:

Mr Kettle

RESPONDENT:

Ms Green

FILE NUMBER:

BRC

6527

2009

DATE DELIVERED:

14 October 2013
EX TEMPORE

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Cleary J

HEARING DATE:

14 October 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Burchill & Horsey Lawyers

Ms Ellis

RESPONDENT:

In person

Orders

That the Application in a Case filed by Mr Kettle on 27 March 2013 is dismissed.
That the Applicant shall pay the Respondent’s costs of and incidental to this Application, to be agreed or assessed NOTING that the Respondent’s solicitor estimates the costs to be in the sum of $2,500 and that such costs be paid within three months of the date of this Order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Green & Kettle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6527 of 2009

Ms Green

Applicant

And

Mr Kettle

Respondent

REASONS FOR JUDGMENT

The mother in these proceedings has applied for costs as a result of an application brought by the father being dismissed today.
The usual principle in the Family Court is that each party bears his or her own costs. However, if the Court thinks that it is just to do so, a costs order may be made. In considering what order, if any, should be made, the Court must have regard to the financial circumstances of each of the parties.
The applicant is a primary producer by occupation. That is contained in his affidavit. The property is valuable, although there is apparently a dispute about its value. It is not less than $1 million and may be two or more. There is $240,000 outstanding on a mortgage, and mortgage payments, I am told, are being made at the rate of $1600 to $1700 a month, interest only. The evidence of the applicant was that his only source of income at present is $378 per fortnight on a reduced Newstart Allowance. That leaves a shortfall of about $800 a month at least for the payment of the mortgage, interest only, as described.
The evidence suggests that the applicant must have some other source of income to be paying the mortgage at that rate, and even if I accept that his parents help him out with money from time to time, and that his wife has worked but is now intending to seek Centrelink benefits, I take into account the applicant’s financial circumstances in that way.
The mother does not have a grant of…

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 Green and Kettle

Details

AGLC: Green and Kettle [2013] FamCA 913
Case: [2013] FamCA 913
Decision Date: 14 October 2013 EX TEMPORE

CaseChat Overview and Summary

The proceeding concerned an application by Mr Kettle against Ms Green. The nature of the dispute and the specific relief sought by Mr Kettle are not detailed in the provided text, however, the application was heard and determined by Cleary J.

The central legal issue before the Court was whether Mr Kettle's application should be granted or dismissed. The Court was required to consider the merits of the application and make a determination on its validity.

Cleary J dismissed Mr Kettle's application. The Court ordered that Mr Kettle pay Ms Green's costs incidental to the application. These costs were to be agreed or assessed, with a note that Ms Green's solicitor estimated the costs at $2,500, and that payment was to be made within three months of the date of the order.

Orders

Orders of the court

That the Application in a Case filed by Mr Kettle on 27 March 2013 is dismissed.

That the Applicant shall pay the Respondent’s costs of and incidental to this Application, to be agreed or assessed NOTING that the Respondent’s solicitor estimates the costs to be in the sum of $2,500 and that such costs be paid within three months of the date of this Order.

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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