FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAMBERT & LAMBERT | [2017] FCCA 349 |
| Catchwords: FAMILY LAW – Costs – Application for indemnity costs – discussion of principles – costs awarded. |
| Legislation: Family Law Act 1975, s.117 Federal Circuit Court Rules 2001, r.21.02 |
| Cases cited: Cochrane & Cochrane [2012] FMCAfam 984 Munday & Bowman (1997) FLC 92-784 Rice & Asplund (1979) FLC 90-725 Penfold & Penfold (1980) 144 CLR 311 |
| Applicant: | MR LAMBERT |
| Respondent: | MS LAMBERT |
| File Number: | PAC 2933 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 7 December 2016 |
| Date of Last Submission: | 7 December 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 2 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Conte Mills |
| Solicitors for the Applicant: | APJ Law |
| Counsel for the Respondent: | Ms Judge |
| Solicitors for the Respondent: | Kevin Hockey & Associates |
ORDERS
The Response filed 15 July 2016 is dismissed.
The Respondent pay the Applicant’s costs in the amount of $4,400 within 42 days.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Lambert & Lambert is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2933 of 2016
| MR LAMBERT |
Applicant
And
| MS LAMBERT |
Respondent
REASONS FOR JUDGMENT
Introduction
On 28 May 2015 with consent of the parties, the Court made final parenting orders with respect to the parties’ three children:
a)X, born on (omitted) 2002;
b)Y born on (omitted) 2003; and
c)Z born on (omitted) 2003.
(“Final Orders”)
Both Z and Y are to live with the mother pursuant to the Final Orders.
On 27 June 2016, the Mother filed an Initiating Application seeking a recovery order with respect to Z (“the Recovery Application”).
The Recovery Application first came before the Court in a busy duty list on 4 July 2016. For reasons which are explained below, the Recovery Application was adjourned and ultimately the issue…
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CaseChat Overview and Summary
The central legal issue before the court was whether there had been a sufficient change in circumstances since the making of the final orders to justify revisiting the parenting arrangements. The court was required to consider the principles established in *Rice & Asplund* regarding the circumstances under which final parenting orders can be varied.
Judge Obradovic applied the principles from *Rice & Asplund*, noting that a significant change in circumstances is required to justify a new hearing. The court found that it was not in the children’s best interests to be involved in further litigation and that the alleged changes in circumstances were not of sufficient significance to warrant revisiting the existing parenting orders. Consequently, the application was dismissed. The court also considered an application for indemnity costs, which was granted, ordering the respondent to pay the applicant's costs.
Orders
Orders of the court
1.
The Response filed 15 July 2016 is dismissed.
2.
The Respondent pay the Applicant’s costs in the amount of $4,400 within 42 days.
3.
Remove all outstanding issues from the list of cases awaiting finalisation.
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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