Honan and Nourse (No. 2) - [2007] FamCA 1691

FAMILY COURT OF AUSTRALIA

HONAN & NOURSE (NO. 2)

[2007] FamCA 1691

FAMILY LAW – COSTS – Applications by both parties and Independent Children’s Lawyer for costs certificate pursuant to s 10(3) of Federal Proceedings (Costs) Act 1981 – Judge previously presided over trial between parties – Matter listed for trial before same judge – Disqualification of judge – Adjournment not due to neglect, default or improper act of any party – Administrative oversight of the court – Order: costs certificate issued in favour of parties and Independent Children’s Lawyer

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth) s 10(3)

APPLICANT:

Mr Honan

RESPONDENT:

Ms Nourse

INDEPENDENT CHILDREN’S LAWYER:

Mr Pickhaver

FILE NUMBER:

ADF

4692

2001

DATE DELIVERED:

20 September 2007

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Burr J

HEARING DATE:

20 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mrs Read

SOLICITOR FOR THE APPLICANT:

Dixon Gallasch

COUNSEL FOR THE RESPONDENT:

Mr Treadrea

SOLICITOR FOR THE RESPONDENT:

Jo-Anne N Milen & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Pickhaver

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

J Richard Croft

Orders

I therefore Order that a Costs Certificate issue in favour of each of the parties and the Independent Children’s Lawyer for today’s proceedings in the sum of $550.00 each.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 4692 of 2001

MR HONAN

Applicant

And

MS NOURSE

Respondent

REASONS FOR JUDGMENT

THE APPLICATION

I have before me for determination an application by each of the parties and the Independent Children’s Lawyer for a Costs Certificate pursuant to the Federal Proceedings (Costs) Act 1981. Specifically their application is pursuant to Section 10(3) of that statute.

BACKGROUND

The application arises as a consequence of an Order I made this day disqualifying myself from the hearing of any further applications in this matter, but particularly the trial of these proceedings.
In 2004 and 2005 I presided over a trial between the parties pertaining to parenting issues of their child … (“[the child]”) born in December 2000. On 3 March 2005 I delivered my reasons.
On 30 September 2005 the father filed a further application in this Court seeking to re-litigate parenting matters. Subsequently, without any enquiry having been made of me or my Associate by anybody within the Registry, the matter was listed for trial to commence before me today (5^th September 2007).
When I became aware of the listing before me, I arranged for the matter to be listed on a directions basis on Tuesday 28 August 2007 as I anticipated that there was an issue for determination as to whether or not I ought to be disqualified from conducting a further trial of the proceedings. A letter was despatched from this Court on 23 August 2007, advising each of the parties and the Independent Children’s Lawyer 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 Honan and Nourse (No. 2)

Details

AGLC: Honan and Nourse (No. 2) [2007] FamCA 1691
Case: [2007] FamCA 1691
Decision Date: 20 September 2007

CaseChat Overview and Summary

In *Honan and Nourse (No. 2)*, the proceedings before Burr J concerned a dispute between the parties, with the Independent Children’s Lawyer also participating. The specific nature of the dispute is not detailed in the provided text, but the outcome relates to costs.

The central legal issue before the court was the determination of costs in relation to the proceedings. Specifically, Burr J was required to decide whether to grant costs certificates and, if so, in what amount, for the parties and the Independent Children’s Lawyer.

Burr J reasoned that a costs certificate was appropriate for each of the parties and the Independent Children’s Lawyer for the proceedings. The court ordered that a costs certificate issue in favour of each of these parties in the sum of $550.00 each.

Orders

Orders of the court

I therefore Order that a Costs Certificate issue in favour of each of the parties and the Independent Children’s Lawyer for today’s proceedings in the sum of $550.00 each.

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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