JOHANSON & NIXON

[2015] FCCA 1930

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOHANSON & NIXON [2015] FCCA 1930

Catchwords:
FAMILY LAW – Children – parenting orders – contravention of parenting orders – application – contravention.

PRACTICE AND PROCEDURE – Discontinuance – application to discontinue – where Applicant seeks to discontinue on the date of the hearing – leave required.

COSTS – Application for costs – parties to pay their own costs.

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

Federal Circuit Court Rules 2001, rr.13.01, 13.02

Applicant: MR JOHANSON

Respondent: MS NIXON

File Number: SYC 4141 of 2012

Judgment of: Judge Scarlett

Hearing date: 3 July 2015

Date of Last Submission: 3 July 2015

Delivered at: Sydney

Delivered on: 3 July 2015

REPRESENTATION

Counsel for the Applicant: Ms Houghton

Solicitors for the Applicant: Soden Legal

Solicitor for the Respondent: Ms Escobar

Solicitors for the Respondent: Clayhills Escobar Solicitors

ORDERS

1. The Contravention Application filed on 3 October 2014 by

   
   

   Mr Johanson is discontinued.

2. The parties are to pay their own costs.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 4141 of 2012

MR JOHANSON

Applicant

And

MS NIXON

Respondent

REASONS FOR JUDGMENT

1. This is an Application by the father to deal with the mother for contravention on two separate occasions of an Order made by this Court on 16 October 2013.  The allegations were that the mother had not complied with the change from supervised to unsupervised time as per those orders.

2. The Application was supported by two affidavits, the original affidavit in support of the application of 2 October and a subsequent one of 26 February.  The Application came before the Court on more than one prior occasion.  Originally, the Respondent had indicated that the allegations were to be admitted but she would be alleging a reasonable excuse.  Her position changed and the allegations were denied in their entirety.

3. The matter went over and it has taken a little while for it to come to a hearing but it was listed for hearing today with priority, which it has been given.  After some discussions between Counsel for the mother and solicitor for the father, the solicitor for the father has sought leave to discontinue the Contravention Application.

4. The reason why the father’s solicitor sought to discontinue the Application was not, on what she told the Court, because of any flaws that she saw in the Application but because of an expressed change in the mother’s position relating to the father’s time with the child which relates more to the mother’s application than to the father’s Contravention Application.

Requirement for leave to discontinue

1. However, whilst a party needs the leave of the Court to discontinue an Application if the Application is to be discontinued within 14 days prior to the hearing (Rule 13.01), not only is there a need for leave to be granted, which I have granted, but the other party may seek an order for costs, and that is specifically provided for in the Federal Circuit Court Rules at Rule 13.02. There is an application for costs by the mother.

Application for Costs

1. It is conceded by Ms Houghton of Counsel, who appeared for mother, that on more than one occasion the parties have been here and their legal advisers have been here in respect of the mother’s application, as well as the contravention.  That is a matter that I should take into account just as I take into account the matter was originally to be defended on the basis that the mother would establish a reasonable excuse for the contraventions which she would admit.

2. However, it has been put to me today that the Contravention Application would not have succeeded because the father would not have been able to establish a prima facie case and reasons have been given to me as to why that is so.

3. I do not intend to hear an application that has been discontinued.  Suffice it to say that I have read the affidavit material in support of the Applicant’s case and I am not persuaded that had I heard the matter in full, that I would have necessarily made a finding that no prima facie case had been made out.  It may well have been necessary for the Respondent to have given evidence, either to establish that there was no contravention or that she had a reasonable excuse for a contravention.

4. Indeed, the letters annexed to the father’s affidavit from the mother’s previous solicitors certainly suggest strongly that this was going to be a reasonable excuse case. In my view, looking at the factors the Court needs to consider, under subsection 117(2A) of the Family Law Act 1975 (Cth), looking at the conduct of the parties and other matters generally, I am of the view that in the circumstances the order that I should make is that the parties are to pay their own costs.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  16 July 2015