Mahoney & Dieter (No. 2)

Case [2022] FedCFamC1F 149

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Mahoney & Dieter (No. 2) [2022] FedCFamC1F 149

File number(s): MLC 4348 of 2020
Judgment of: MCEVOY J
Date of judgment: 16 March 2022 
Catchwords: FAMILY LAW – SECURITY FOR COSTS – Where the father seeks an order for security for costs with respect to contravention application – Where the mother and the stepfather have brought various unsuccessful applications – Security for costs ordered – Contravention application filed by the stepfather stayed pending payment of the security for cost –  Costs reserved
Legislation:

Acts Interpretation Act 1901 (Cth)

Family Law Act 1975 (Cth) ss 70NDB, 70NDC, 117

Family Law Rules 2004 (Cth) rule 19.05

Interpretation of Legislation Act 1984 (Vic) section 35

Cases cited:

Atkins & Hunt (2015) FLC 93-646
Luadaka v Luadaka (1998) FLC 92-830
Palma & Caleffi (Security for Costs) [2011] FamCAFC 174

Rice & Asplund (1979) FLC 90‑725

Division: Division 1 First Instance
Number of paragraphs: 31
Date of last submissions: 29 March 2021
Date of hearing: 29 March 2021
Place: Melbourne
Counsel for the Applicant: Ms Harris
Solicitor for the Applicant: Melbourne Family Lawyers
Counsel for the Respondent: Litigant in person

ORDERS

MLC 4348 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR DIETER

Applicant
AND:

MR MAHONEY

Respondent

ORDER MADE BY:

MCEVOY J

DATE OF ORDER:

29 MARCH 2021

THE COURT ORDERS THAT:

1.The respondent, Mr Mahoney, pay the sum of $8,944.00 by way of security for costs, such amount to be paid to the Registrar of the Family Court of Australia and to be held as security for costs pending the determination of the Contravention Application filed on 4 February 2021 and any application for costs arising from that application to be released as directed by further order of the Court.

2.The Contravention Application filed on 4 February 2021 be stayed pending the payment of the amount of the security for costs as provided for in order 1 hereof.

3.The hearing of the Application in a Case filed 2 May 2020 by Ms & Mr Mahoney (“the Rice & Asplund application”) presently listed for hearing on 19 May 2021 be adjourned to a date to be fixed for two days and listed as the primary matter.

4.Subject to the payment of the amount of the security for costs as provided for in order 1 hereof, the Contravention Application filed by Mr Mahoney on 4 February 2021 be listed for hearing before the Honourable Justice McEvoy together with the Rice & Asplund application.

5.The hearing of the Contravention Application filed 4 February 2021 listed for hearing in the Judicial Duty List on 12 April 2021 be vacated.

6.Each party’s costs of today be and are hereby reserved to the hearing of the Contravention Application filed 4 February 2021.

AND THE COURT NOTES:

A.The applicant for security for the costs of the Contravention Application, Mr Dieter, and the respondent, Mr Mahoney, accepted that it would be more efficient for Mr Mahoney’s Contravention Application…

Continue reading Mahoney & Dieter (No. 2)

Sign in free to access the full text

Details
AGLC
Mahoney & Dieter (No. 2) [2022] FedCFamC1F 149
Case
[2022] FedCFamC1F 149
Decision Date

CaseChat Overview and Summary

This matter involved a dispute between the father and the stepfather of a child born out of wedlock in 2010. The father, who was unaware of the mother's marriage until after the birth, sought orders to spend time with the child. After a series of proceedings in both New Zealand and Australia, the father was awarded day-to-day care of the child, with supervised time for the mother and stepfather during school holidays. The stepfather subsequently filed a contravention application, which was stayed pending the father's provision of security for costs. The court was required to determine whether the father should be ordered to provide security for costs and, if so, the amount to be paid. The court also had to consider the implications of the security for costs order on the scheduling of the hearing of the contravention application and the substantive proceedings.

The court found that the stepfather had established a prima facie case for the provision of security for costs, as the father had brought unsuccessful applications in the past, and the stepfather had incurred significant legal costs in defending those applications. The court considered the amount of security for costs to be appropriate based on the costs incurred by the stepfather and the financial circumstances of the parties. The court also noted that the security for costs order would not unduly prejudice the father's ability to pursue his contravention application, as the order was designed to ensure that the stepfather would not be left to incur further legal costs if the application was unsuccessful.

The court ordered the father to pay $8,944.00 by way of security for costs, to be held as security pending the determination of the contravention application and any application for costs arising from that application. The contravention application was stayed pending the payment of the security for costs, and the hearing of the substantive proceedings was rescheduled to accommodate the hearing of both the contravention application and the substantive proceedings. The court reserved costs of the hearing to the hearing of the contravention application.

The court's decision highlights the importance of considering the financial circumstances of the parties when determining the amount of security for costs. The court also emphasised the need to balance the interests of both parties in ensuring that the security for costs order does not unduly prejudice either party's ability to pursue their legal claims.

Orders

Orders of the court

MLC 4348 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR DIETER

Applicant

AND:

MR MAHONEY

Respondent

ORDER MADE BY:

MCEVOY J

DATE OF ORDER:

29 MARCH 2021

THE COURT ORDERS THAT:

1. The respondent, Mr Mahoney, pay the sum of $8,944.00 by way of security for costs, such amount to be paid to the Registrar of the Family Court of Australia and to be held as security for costs pending the determination of the Contravention Application filed on 4 February 2021 and any application for costs arising from that application to be released as directed by further order of the Court.

2. The Contravention Application filed on 4 February 2021 be stayed pending the payment of the amount of the security for costs as provided for in order 1 hereof.

3. The hearing of the Application in a Case filed 2 May 2020 by Ms & Mr Mahoney (“the Rice & Asplund application”) presently listed for hearing on 19 May 2021 be adjourned to a date to be fixed for two days and listed as the primary matter.

4. Subject to the payment of the amount of the security for costs as provided for in order 1 hereof, the Contravention Application filed by Mr Mahoney on 4 February 2021 be listed for hearing before the Honourable Justice McEvoy together with the Rice & Asplund application.

5. The hearing of the Contravention Application filed 4 February 2021 listed for hearing in the Judicial Duty List on 12 April 2021 be vacated.

6. Each party’s costs of today be and are hereby reserved to the hearing of the Contravention Application filed 4 February 2021.

AND THE COURT NOTES:

A. The applicant for security for the costs of the Contravention Application, Mr Dieter, and the respondent, Mr Mahoney, accepted that it would be more efficient for Mr Mahoney’s Contravention Application to be heard at the time of the Rice & Asplund application and that it would be preferable that these applications be listed as the primary matter on the relevant days.

B. Mr Mahoney proposes to travel to Melbourne to appear in the Rice & Asplund application and to prosecute his Contravention Application filed 4 February 2021.

C. The Court informed the parties that reasons for the making of the order that Mr Mahoney provide security for costs will be provided in the Court’s judgment on the Rice & Asplund application.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

In order to accommodate the hearing of the substantive proceedings and the contravention application, and to provide a fixed date for the hearing of both so as to enable the stepfather to travel from New Zealand to Melbourne to appear, the substantive proceedings and the contravention application were adjourned to a date to be fixed later in 2021. However, as matters transpired, the stepfather informed the Court that he would not be making a payment by way of security for the father’s costs of his contravention application, and that application has remained stayed. Subsequently it was necessary for the substantive proceedings to be transferred to Johns J, however because her Honour was unable to hear the proceedings they were then transferred to Bennett J. Bennett J has now listed the matter for hearing on 28 July 2022 and ordered a report directed specifically to the Rice & Asplund issue. In the circumstances therefore it is appropriate that I provide my reasons for the security for costs and ancillary orders that I made on 29 March 2021. These are those reasons. BACKGROUND It appears to be uncontroversial that the mother and the stepfather were married in 1996 and had three children. Two of their children are now adults and the third child died in 2009. Although there has been some dispute about the nature of the relationship between the mother and the father, whatever be its nature the mother became pregnant with the child in 2010. The father was apparently unaware that the mother was married until after the child’s birth. The mother is a New Zealand citizen and the father is an Australian citizen. The child has dual Australian/New Zealand citizenship. The stepfather became aware that he was not the biological father after the child’s birth. Communication between the mother and the father apparently ceased in January 2012 and in early 2014 the father commenced proceedings in the Family Court Division of the District Court of New Zealand Court seeking orders to spend time with the child. Thereafter proceedings have continued virtually unabated in New Zealand and in Australia. There were fully contested parenting proceedings in New Zealand between the father and the mother. The stepfather assisted the mother in the New Zealand parenting proceedings, acting as the mother’s McKenzie friend. The stepfather is also a professional in New Zealand. The New Zealand proceedings concluded on 24 March 2017 and judgment was delivered in early 2017. The orders of the New Zealand Court provided for the father to have day to day care of the child and be permitted to relocate to Australia after 27 April 2017, which he duly did. The orders also provided that the father return the child to New Zealand each school holidays for her to have supervised time with her mother and the stepfather. The mother appealed this decision, but the appeal was dismissed. On 14 November 2017 the mother filed proceedings in the Family Court of Australia seeking that the New Zealand orders be discharged and fresh parenting orders be made that provide for the child to live with her in New Zealand. That application was dismissed on 27 June 2018 by Austin J. His Honour found that the mother had failed to demonstrate any material change in circumstances. The mother appealed the decision of Austin J, but that appeal was dismissed on 7 March 2019.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.