Kavanagh & Madgwick (No. 3)

Case [2008] FMCAfam 287

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAVANAGH & MADGWICK (No. 3) [2008] FMCAfam 287

CHILD SUPPORT – Application for departure order – administrative assessment.

COSTS – Consideration of factors – financial circumstances – effect of Legal Aid grant – conduct of proceedings – applicant wholly unsuccessful – injunctive and final proceedings against Cross Respondent – Respondent successful in interim injunctive proceedings against Cross Respondent – Respondent unsuccessful in final proceedings against Cross Respondent – consideration of factors relevant to applications concerning Cross Respondent – Applicants conduct of proceedings resulting in applicant paying costs of Respondent and costs Cross-Respondent – Counsel’s costs not disbursements.
Child Support (Assessment) Act 1989 (Cth), s.100
Family Law Act 1975 (Cth), s.117(1), (2) & (2A)
Federal Magistrates Court Rules, 2001 (Cth) rr. 21.02(a), 21.15, 21.16 and Schedule 1
RNL & RHB [2005] FMCAfam 520
Barker v Barker & Wade (1976) 13 ALR 123
Penfold v Penfold (1980) 144 CLR 311
Re JJT & Ors, Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44
K & M (No 2) [2007] FMCAfam 920
In the Marriage of I and I (No 2) (1995) 22 Fam LR 557
In the Marriage of SH and P Brown (1998) 23 Fam LR 349
C & C (No 2) [2007] FMCAfam 54
K & M (No 1) [2007] FMCAfam 524
PAK v GDK [2004] FMCAfam 92
In the Marriage of AR & DJ Telfer (1996) 20 Fam LR 619
Colan Products Pty Ltd v Luxton Pty Ltd & Anor (No 2) [2002] FMCA 90
Applicant: MR KAVANAGH
Respondent: MS MADGWICK
Cross Respondent: MS KAVANAGH
File Number: MLC 1038 of 2007
Judgment of: Lucev FM
Hearing date: Written submissions
Date of Last Submission: 3 December 2007
Delivered at: Sydney via telephone by Scarlett FM
Delivered on: 1 April 2008

REPRESENTATION

Applicant: In person
Solicitors for the Respondent: Hardys
Solicitors for the Cross -Respondent: Bradley Lawyers

ORDERS

  1. The Applicant pay to the Respondent the sum of $29,454.55 within 90 days; and

  2. The Applicant pay to the Cross-Respondent the sum of $8,015.00 within 90 days.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

MLC 1038 OF 2007

MR KAVANAGH

Applicant

And

MS MADGWICK

Respondent

MS KAVANAGH

Cross Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for costs arising from an application by the Applicant Father[1] for a departure order in relation to an administrative assessment of child support.

    [1] “Husband”.

  2. Costs are sought:

    a)by the Respondent Mother[2] against the Husband for all of the proceedings (since 5 June 2007, which appears to be the date at which her current solicitors became involved in the matter); and

    b)by the Cross Respondent[3] against the Former Wife for that part of the proceedings involving the Current Wife.

    [2] “Former Wife”.

    [3] “Current Wife”.

  3. The Former Wife says that if the Current Wife is successful in any costs application against…

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Details
AGLC
Kavanagh & Madgwick (No. 3) [2008] FMCAfam 287
Case
[2008] FMCAfam 287
Decision Date

CaseChat Overview and Summary

In the matter of Kavanagh & Madgwick (No. 3), the Federal Circuit and Family Court of Australia was tasked with considering an application for a departure order in relation to child support payments. The primary applicant sought a departure from the administrative assessment of child support obligations, arguing that the assessment did not adequately account for certain factors. The court was required to determine whether the administrative assessment was accurate and if any modifications were warranted.

The legal issues before the court included the accuracy of the administrative assessment of child support and whether the applicant had demonstrated grounds for departure from the assessment. Additionally, the court needed to consider the factors relevant to the costs orders, including the financial circumstances of the parties, the effect of a Legal Aid grant, the conduct of the proceedings, and the outcomes of related litigation against a cross-respondent.

The court found that the administrative assessment was accurate and no departure was warranted. The applicant was wholly unsuccessful in their application. The court also considered the conduct of the proceedings and the outcomes of related litigation against the cross-respondent. It was noted that the applicant was successful in interim injunctive proceedings but unsuccessful in the final proceedings against the cross-respondent. The court ordered that the applicant pay costs to the respondent and cross-respondent. The respondent was awarded $29,454.55, and the cross-respondent was awarded $8,015.00, both to be paid within 90 days. Additionally, the court clarified that counsel’s costs were not to be considered as disbursements.

Orders

Orders of the court

1.

The Applicant pay to the Respondent the sum of $29,454.55 within 90 days; and

2.

The Applicant pay to the Cross-Respondent the sum of $8,015.00 within 90 days.

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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