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
The Applicant pay to the Respondent the sum of $29,454.55 within 90 days; and
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
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”.
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”.
The Former Wife says that if the Current Wife is successful in any costs application against…
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- AGLC
- Kavanagh & Madgwick (No. 3) [2008] FMCAfam 287
- Case
- [2008] FMCAfam 287
- Decision Date
CaseChat Overview and Summary
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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