Kyrkos and Malkin (No 2) - [2020] FamCA 800

FAMILY COURT OF AUSTRALIA

KYRKOS & MALKIN (NO. 2)

[2020] FamCA 800

FAMILY LAW – COSTS – Where the mother seeks an order for costs against the father in respect of a hearing listed upon the Application of the Independent Children’s Lawyer supported by the mother – Where the father opposed the orders sought by the Independent Children’s Lawyer – Where the Court made Orders in accordance with those sought by the Independent Children’s Lawyer – Whether the conduct of the father in opposing the Application justifies making an order for costs – Court finds an order for costs against the father should be made – Order made for lump sum costs against the father.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 1.04, 19.18

Byrnes v Brisconnections Management Company Limited (No 2) [2009] FCA 1432
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664
Penfold v Penfold (1980) 144 CLR 311
Stoian & Fiening (Costs) [2014] FamCA 944
Wrensted & Eades (2016) FLC 93-697

APPLICANT:

Ms Kyrkos

RESPONDENT:

Mr Malkin

FILE NUMBER:

SYC

8562

2017

DATE DELIVERED:

24 September 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

By way of written submissions

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Menkes of Pearson Emerson Family Lawyers

SOLICITOR FOR THE RESPONDENT:

Mr Pirintji of Argus Lawyers

Orders

That, within 28 days of the date of this Order, the father pay the mother’s costs of and incidental to the Application listed before the Court on 28 July 2020 in the sum of $2,006.53.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kyrkos & Malkin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8562 of 2017

Ms Kyrkos

Applicant

And

Mr Malkin

Respondent

REASONS FOR JUDGMENT

Introduction

This decision concerns an Application for costs by Ms Kyrkos (“the mother”) against Mr Malkin (“the father”) in respect of an Application by the Independent Children’s Lawyer in this matter for orders to be made for the therapeutic counselling to be provided to the parties’ children, Z born in 2019 and W born in 2011 (collectively, “the children”) and for that counselling to be on a non-reportable and confidential basis. The Application for costs is made in circumstances where the mother consented to the orders sought…

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 Kyrkos and Malkin (No 2)

Details

AGLC: Kyrkos and Malkin (No 2) [2020] FamCA 800
Case: [2020] FamCA 800
Decision Date: 24 September 2020

CaseChat Overview and Summary

In *Kyrkos and Malkin (No 2)*, the District Court of New South Wales was required to determine an application concerning costs. The dispute arose following an application heard by the Court on 28 July 2020, with the mother seeking costs from the father.

The central legal issue before the Court was the quantum of costs to be awarded to the mother in relation to the application heard on 28 July 2020.

McClelland DCJ ordered that the father pay the mother’s costs of and incidental to the application heard on 28 July 2020. These costs were quantified at $2,006.53 and were to be paid within 28 days of the date of the order, subject to the formal entry of the order in the Court’s records.

Orders

Orders of the court

That, within 28 days of the date of this Order, the father pay the mother’s costs of and incidental to the Application listed before the Court on 28 July 2020 in the sum of $2,006.53.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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