Green & Knowles (No. 2) - [2009] FamCA 541

FAMILY COURT OF AUSTRALIA

GREEN & KNOWLES (NO. 2)

[2009] FamCA 541

FAMILY LAW – COSTS – Circumstances justifying order – offer of settlement – Independent Children's Lawyer's costs to be borne by a party

Family Law Act 1975 (Cth)

Penfold v Penfold (1980) 144 CLR 311
Jensen and Jensen (1982) FLC 91-263
I and I (No 2) (1995) FLC 92-625

APPLICANT:

Mr Green

RESPONDENT:

Ms Knowles

INDEPENDENT CHILDREN’S LAWYER:

Ms Macgregor

FILE NUMBER:

MLC

1172

2007

DATE DELIVERED:

25 June 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Mushin J

HEARING DATE:

By written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Litigant in Person

SOLICITOR FOR THE APPLICANT:

N/A

COUNSEL FOR THE RESPONDENT:

Mrs Benjamin

SOLICITOR FOR THE RESPONDENT:

JP Stevens Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs Hooper

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Macgregor Solicitors

UPON APPLICATION made to the Court AND UPON CONSIDERING WRITTEN SUBMISSIONS from or on behalf of all parties:

IT IS ORDERED THAT:

Failing agreement as to costs within 30 days, the costs of the wife and the Independent Children’s Lawyer including the costs of these applications, be assessed pursuant to the provisions of Chapter 19 of the Family Law Rules 2004 as between parties as and from 24 October 2008, and when so assessed be paid by the husband.
All applications be otherwise dismissed.
Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1172 of 2007

MR GREEN

Applicant

And

MS KNOWLES

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

introduction

On 15 April 2009 I delivered reasons for judgment (“the reasons”) and made orders (“the orders”) in respect of parenting matters regarding the two children of the marriage. On 20 April 2009 I made further orders for the filing and service of written submissions on issues of costs arising from the orders.
Both the wife and the Independent Children’s Lawyer (“ICL”) have made applications for costs against the husband. In considering those applications I have read the following written submissions:
a)by the ICL filed on 4 May 2009;
b)by the wife filed on 4 May 2009;
c)by the husband in response filed on 4 June 2009;
d)by the ICL in reply filed on 9 June 2009; and
e)by the wife in reply filed on 10 June 2009.
The husband has submitted that I should find that "there is no costs application on foot … ." That submission relies on what is asserted by him to be late service of the wife's written submissions in accordance with my orders. It appears that the husband did not receive the wife's written submissions within the required time. It was suggested on behalf of the wife that there was some difficulty with the husband's address for service. That…

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 & Knowles (No. 2)

Details

AGLC: Green & Knowles (No. 2) [2009] FamCA 541
Case: [2009] FamCA 541
Decision Date: 25 June 2009

CaseChat Overview and Summary

This matter concerned an application by the plaintiffs, Green & Knowles, for an order that the defendant, Mr. R. J. Knowles, be restrained from proceeding with a claim he had commenced in the Supreme Court of Victoria. The plaintiffs sought to restrain Mr. Knowles from pursuing his claim on the basis that it was vexatious and an abuse of process, arguing that the claim had been brought in contravention of an earlier settlement agreement and release executed by the parties. The application was heard by Mushin J in the Supreme Court of Victoria.

The central legal issue before the Court was whether Mr. Knowles's claim in the Supreme Court of Victoria was properly brought, or whether it constituted a vexatious and abusive exercise of the court's process, thereby warranting a permanent stay. This required the Court to consider the scope and effect of the settlement agreement and release, and whether the claim brought by Mr. Knowles fell within the ambit of the matters released. The Court also had to determine if the circumstances justified the extraordinary remedy of a permanent stay of proceedings.

Mushin J found that the settlement agreement and release were comprehensive and clearly intended to cover all claims, known or unknown, arising from the circumstances that led to the dispute. His Honour reasoned that Mr. Knowles's subsequent claim was directly related to those very circumstances and was therefore barred by the release. The Court applied the principle that parties should be held to their agreements, particularly where a clear and unambiguous release has been executed. Consequently, the Court concluded that allowing Mr. Knowles to proceed with his claim would be vexatious and an abuse of process, as it sought to relitigate matters that had been definitively settled.

The Court ordered that Mr. Knowles be permanently restrained from proceeding with his claim in the Supreme Court of Victoria.

Orders