Lagan and Willcott - [2017] FCCA 1943

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAGAN & WILLCOTT

[2017] FCCA 1943

Catchwords:
FAMILY LAW – Costs –Application Contravention dismissed as no prima facie case – costs sought.

Legislation:

Family Law Act 1975, ss.70NBA, 70NCB, 117

Federal Circuit Court Rules 2001, sch.1, r.21.02

Cases cited:

Braithwaite & Braithwaite [2007] FamCA 468
Collins & Collins (1985) FLC 91-603
Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v Fish & Anor (2005) 33 Fam LR 123

Penfold & Penfold (1980) 144 CLR 311

Re David Costs (1998) FLC 92-809

Applicant:

MR LAGAN

Respondent:

MS WILLCOTT

File Number:

CAC 2089 of 2010

Judgment of:

Judge Obradovic

Hearing date:

9 March 2017

Date of Last Submission:

27 July 2017

Delivered at:

Parramatta

Delivered on:

18 August 2017

REPRESENTATION

Appearing for the Applicant:

Self-represented

Counsel for the Respondent:

Ms Dart

Solicitors for the Respondent:

Chalker Gray Lawyers

ORDERS

Application for costs of the Application-Contravention is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

CAC 2089 of 2010

MR LAGAN

Applicant

And

MS WILLCOTT

Respondent

REASONS FOR JUDGMENT

On 30 November 2016, the Applicant father filed an Application–Contravention alleging contravention of final parenting orders made on 30 May 2012 by the Respondent mother. The first return date of the Application – Contravention was 13 February 2017.
On 9 February 2017, the mother filed an Initiating Application seeking to vary the final parenting orders. That Application was supported by an Affidavit of the mother filed on the same date. The first return date of that Application was 28 March 2017.
On 13 February 2017, the Court listed the Application – Contravention for hearing on 9 March 2017, vacated the first return date of the Initiating Application and instead listed that Application for directions after the hearing of the Application – Contravention.
The father’s Application – Contravention was heard on 9 March 2017. The father was cross-examined. The Court found that the alleged contraventions had not been established and dismissed the Application-Contravention.
On the mother’s Application to vary the Orders of 30 May 2012 following the contravention hearing, the Court made orders pursuant to s70NBA Family Law Act 1975 (Cth) suspending orders Order 4(e) and 5(d) made on 30 May 2012. The Court also made a number of interim orders for the children’s time with the father.
Also on 9 March 2017, the Court made orders directing the father to file a Response, Affidavit and Notice of Risk by 31 March 2017, and it directed the parties to attend a Child Dispute Conference on 20 July 2017.
On 7 April 2017, submissions in relation to costs were filed on behalf of the mother, seeking costs in the amount of $6,770 in accordance with Schedule 1 of the Federal Circuit Court Rules 2001 being costs for preparation for final hearing and a daily hearing fee (items 6 and 13…

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 Lagan and Willcott

Details

AGLC: Lagan and Willcott [2017] FCCA 1943
Case: [2017] FCCA 1943
Decision Date: 18 August 2017

CaseChat Overview and Summary

In the matter of *Lagan and Willcott*, heard before Judge Obradovic, the application for costs related to an application concerning contravention was dismissed. The specific nature of the contravention or the underlying dispute between the parties is not detailed in the provided text.

The central legal issue before the court was whether the applicant was entitled to an order for costs in relation to the application that alleged a contravention. The court was required to determine the appropriate disposition of the costs associated with this specific application.

Judge Obradovic dismissed the application for costs. No specific reasoning or legal principles applied by the court in reaching this decision are provided in the excerpt. The court's final order was that the application for costs of the Application-Contravention is dismissed.

Orders

Orders of the court

Application for costs of the Application-Contravention is dismissed.

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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