Mahoney & Dieter - [2022] FedCFamC1A 60

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Mahoney & Dieter [2022] FedCFamC1A 60

Appeal from: Mahoney & Dieter [2021] FedCFamC1F 111

Appeal number(s): NAA 52 of 2021

File number(s): MLC 4348 of 2020

Judgment of: ALDRIDGE, HARPER & RIETHMULLER JJ

Date of judgment: 6 May 2022

Catchwords: FAMILY LAW – APPEAL – COSTS – Appeal against a costs order – Where the application wholly unsuccessful – Vexatious proceeding – Where the appellants contended that the conduct of the respondent was such that it outweighed all considerations taken into account so that the appropriate order should be that there be no order as to costs – Relevant considerations – Weight challenges – No error established – Appeal dismissed – No order as to costs.

Legislation:
Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.01

Cases cited:
Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8

House v The King (1936) 55 CLR 499; [1936] HCA 40

Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

Number of paragraphs: 48

Date of hearing: 6 May 2022

Place: Melbourne (via video link)

The First Appellant: Self-represented litigant

The Second Appellant: Self-represented litigant

The Respondent: Did not participate
ORDERS

NAA 52 of 2021
MLC 4348 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR MAHONEY

First Appellant

MS MAHONEY

Second Appellant

AND:
MR DIETER

Respondent

ORDER MADE BY:

ALDRIDGE, HARPER & RIETHMULLER JJ

DATE OF ORDER:

6 MAY 2022

THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.There is no order as to costs.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mahoney & Dieter has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION

Mr Mahoney and Ms Mahoney (“the appellants”) appeal against an order requiring them to pay to Mr Dieter (“the respondent”) costs fixed in the sum of $5,418.22.
Ms Mahoney and the respondent are the parents of X (“the child”), who was born in 2011. Pursuant to orders made by the Family Court of New Zealand on 7 April 2017, the child lives with the respondent in Melbourne and travels to New Zealand twice a year to spend time with her mother.
The appellants filed Initiating Applications in the Family Court of Australia (as it was then known) seeking reconsideration of those orders on 14 November 2017 and 12 April 2019, but each…

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 Mahoney & Dieter

Details

AGLC: Mahoney & Dieter [2022] FedCFamC1A 60
Case: [2022] FedCFamC1A 60
Decision Date: 6 May 2022

CaseChat Overview and Summary

In the appeal from the Federal Circuit and Family Court of Australia, the appellants, Mr Mahoney and Ms Mahoney, sought to challenge a costs order made against them in proceedings involving the respondent, Mr Dieter. The appellants argued that the primary judge’s decision to award costs was flawed on various grounds, including the suggestion that the judge had an improper motive and had considered irrelevant matters. The appeal was heard by the appellate division of the court, which comprised Aldridge J, Harper J, and Riethmuller J.

The court was required to determine whether the primary judge had erred in making the costs order. The appellants contended that the judge had acted improperly and had considered irrelevant factors, but they did not provide specific details to support these claims. The court examined the primary judge's reasoning and found no evidence of ulterior motives or consideration of irrelevant matters. Given that the substantive application made by the appellants was unsuccessful and vexatious, the court concluded that the primary judge's decision was correct and not plainly wrong.

The appellate court unanimously agreed that the appeal should be dismissed and that there should be no order as to costs. The judges found no merit in the appellants' arguments and upheld the primary judge's decision. The appeal was dismissed, and the court made an order that there would be no costs awarded to the respondent.

The court's order was that the appeal was dismissed and there would be no order as to costs. This decision was made on 6 May 2022 by Aldridge J, Harper J, and Riethmuller J, in the appellate jurisdiction of the Federal Circuit and Family Court of Australia.

Orders

Orders of the court

NAA 52 of 2021

MLC 4348 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR MAHONEY

First Appellant

MS MAHONEY

Second Appellant

AND:

MR DIETER

Respondent

ORDER MADE BY:

ALDRIDGE, HARPER & RIETHMULLER JJ

DATE OF ORDER:

6 MAY 2022

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. There is no order as to costs.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The appellants do not, apart from the unpleasant and incorrect insinuation that the primary judge sought to evade her judicial obligations, deign to identify any ulterior or improper motive. I cannot see one and in my opinion, this ground is not made out.Was the decision plainly wrong and did the primary judge have regard to irrelevant matters? (Grounds 4 and 5) The appellants assert that “[t]he pleadings speak for themselves” (Appellants’ Summary of Argument filed on 7 February 2022, paragraph 59), whatever that means. They also relied on their submissions as to other grounds. The appellants do not identify the irrelevant matters taken into account. It is impossible to take that aspect of the appeal further. It is clear from what I have already said, that her Honour’s decision is not unreasonable or plainly wrong. Indeed, having regard to the unchallenged findings that the substantive application was unsuccessful and vexatious, I consider the decision, with respect, to be plainly correct. In my opinion, the appeal should be dismissed and I propose an order to that effect.HARPER J: I agree with the orders proposed and the reasons of Aldridge J for those orders.RIETHMULLER J: I too agree with the orders proposed and the reasons for those orders.ALDRIDGE J: The order of the Court therefore is that the appeal is dismissed and as the respondent filed a Submitting Notice, accordingly there will be no order as to costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 52 of 2021 MLC 4348 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR MAHONEY First Appellant MS MAHONEY Second Appellant
AND:	MR DIETER Respondent

Appeal from:	Mahoney & Dieter [2021] FedCFamC1F 111
Appeal number(s):	NAA 52 of 2021
File number(s):	MLC 4348 of 2020
Judgment of:	ALDRIDGE, HARPER & RIETHMULLER JJ
Date of judgment:	6 May 2022
Catchwords:	FAMILY LAW – APPEAL – COSTS – Appeal against a costs order – Where the application wholly unsuccessful – Vexatious proceeding – Where the appellants contended that the conduct of the respondent was such that it outweighed all considerations taken into account so that the appropriate order should be that there be no order as to costs – Relevant considerations – Weight challenges – No error established – Appeal dismissed – No order as to costs.
Legislation:	Family Law Act 1975 (Cth) s 117 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.01
Cases cited:	Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8 House v The King (1936) 55 CLR 499; [1936] HCA 40 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Number of paragraphs:	48
Date of hearing:	6 May 2022
Place:	Melbourne (via video link)
The First Appellant:	Self-represented litigant
The Second Appellant:	Self-represented litigant
The Respondent:	Did not participate

ORDER MADE BY:	ALDRIDGE, HARPER & RIETHMULLER JJ
DATE OF ORDER:	6 MAY 2022