HUMPHREY & HUMPHREY - [2015] FCCA 3033

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUMPHREY & HUMPHREY

[2015] FCCA 3033

Catchwords:
FAMILY LAW – Costs – application for costs – where Applicant failed to appear at final hearing of contravention application – where Application dismissed for non-appearance – where Respondent legally aided.

FAMILY LAW – Children – parenting orders – contravention of parenting orders – application – contravention – where allegations denied.

Legislation:

Family Law Act 1975 (Cth), s.117

Legal Aid Commission Act 1979, s.41
Federal Circuit Court Rules 2001, r.13.03C, Sch. 1, Part 1

Cases cited:
Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248
Hayes & Stapleton [2015] FCCA 1948
In the Marriage of Kohan (1992) 16 Fam LR 245; (1993) FLC 92-340
Prantage & Prantage [2013] FamCAFC 105; (2013) 49 Fam LR 197; FLC 93-544

Wade & McPherson [2014] FCCA 1321

Applicant:

MR HUMPHREY

Respondent:

MS HUMPHREY

File Number:

SYC 6843 of 2012

Judgment of:

Judge Scarlett

Hearing date:

3 November 2015

Date of Last Submission:

3 November 2015

Delivered at:

Sydney

Delivered on:

16 November 2015

REPRESENTATION

Applicant:

No appearance

Solicitor for the Respondent:

Ms Nessworthy

Solicitors for the Respondent:

Hamish Cumming Family Lawyers

ORDERS

The Applicant is to pay the Respondent’s costs fixed in the amount of $1,595.00 within three (3) months of the date of this Order.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6843 of 2012

MR HUMPHREY

Applicant

And

MS HUMPHREY

Respondent

REASONS FOR JUDGMENT

Application for costs

This is an Application by the Respondent for an order for costs arising out of the dismissal of an Application-Contravention brought by the Applicant.
The Application was listed for final hearing on Tuesday 3 November 2015 but was dismissed under the provisions of Rule 13.03C due to the unexplained non-appearance of the Applicant.

Procedural History

The Application-Contravention was filed on 8 April 2015 and was returnable on 6 July 2015. In that Application the Applicant set out some 57 separate counts, of which 48 related to allegations of contravention of the Interim Orders made on 6 March 2013 between 6 March 2013 and 10 September 2014. The other 9 counts related to allegations of contravention of the Final Orders made by consent on 11 September 2014, between 19 September 2014 and 23 March 2015.
I explained to the Applicant the difficulty he faced in seeking to enforce Interim Orders that had already been discharged by the Consent Orders of 11 September 2014, before the Application had been filed. I also pointed out the difficulty in making a plethora of allegations about contraventions said to have occurred more than a year prior to the Application being filed, referring to my comments in Hayes & Stapleton[1] at [108] to [113].
[1] [2015] FCCA 1948
The Respondent denied all of the allegations and the matter…

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 HUMPHREY & HUMPHREY

Details

AGLC: HUMPHREY & HUMPHREY [2015] FCCA 3033
Case: [2015] FCCA 3033
Decision Date: 16 November 2015

CaseChat Overview and Summary

In the matter of *Humphrey & Humphrey*, Judge Scarlett of the Family Court of Australia considered an application for costs following the dismissal of a contravention application. The Applicant had failed to appear at the final hearing of their application alleging contravention of parenting orders, leading to the dismissal of the application. The Respondent, who had legal aid, sought costs.

The central legal issue before the Court was whether the Applicant should be ordered to pay the Respondent's costs, given the Applicant's non-appearance and the dismissal of the contravention application. The Court was required to determine the appropriate costs order in circumstances where the Applicant had not pursued their case to a final hearing.

Judge Scarlett reasoned that the Applicant's failure to attend the final hearing resulted in the dismissal of their application. In such circumstances, it was appropriate to consider an award of costs in favour of the Respondent, who had attended and was legally represented. The Court fixed the Respondent's costs at $1,595.00.

The Applicant was ordered to pay the Respondent's costs fixed in the amount of $1,595.00 within three months of the date of the order.

Orders

Orders of the court

The Applicant is to pay the Respondent’s costs fixed in the amount of $1,595.00 within three (3) months of the date of this Order.

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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