Malden & Danbury

Case [2024] FedCFamC2F 869

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Malden & Danbury [2024] FedCFamC2F 869

File number: SYC 4939 of 2023
Judgment of: MCCLELLAND DCJ
Date of judgment: 9 July 2024
Catchwords: FAMILY LAW – REVIEW – Application brought by the father to review a senior judicial registrar’s decision – Hearing de novo – Where the father filed a Notice of Discontinuance and the senior judicial registrar made orders as sought by the mother and awarded costs in the mother’s favour – Where the mother seeks costs pursuant to s 117 of the Family Law Act 1975 (Cth) of the father’s Application for Review on an indemnity basis – Father’s Application for Review is dismissed – Father to pay the mother’s costs in a fixed sum.
Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.17, 14.07
Cases cited:

Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432

Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68

Feiteiro & Feiteiro [2019] FamCA 647

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish (2005) 33 Fam LR 123; [2005] FamCA 158

Henley & Henley [2019] FamCA 101

Hitch & Hitch (2012) 47 Fam LR 603; [2012] FamCAFC 124

I and I (No 2) (1995) FLC 92-625; [1995] FamCA 80

Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116

Munday v Bowman (1997) FLC 92-784

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Prantage & Prantage (Costs) [2014] FamCA 850

Robinson and Higginbotham (1991) FLC 92-209; [1991] FamCA 5

Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

Division: Division 2 Family Law
Number of paragraphs: 62
Date of hearing: 5 June 2024
Place: Sydney
The Applicant: Litigant in person
Solicitor for the Respondent: Ms Piotrowski, KLH & Associates

ORDERS

SYC 4939 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MR MALDEN

Applicant
AND:

MS DANBURY

Respondent

ORDER MADE BY:

MCCLELLAND DCJ 

DATE OF ORDER:

9 JULY 2024

THE COURT ORDERS THAT:

1.The father’s Application for Review filed 14 May 2024 is dismissed.

2.Within 60 days of the date of these orders, the father pay the mother’s costs of and incidental to:

(a)the father’s Initiating Application filed on 7 July 2023 in the sum of $15,000; and

(b)the Application for Review filed 14 May 2024 assessed in the sum of $1,500.

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).

Part XIVB of the

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Malden & Danbury [2024] FedCFamC2F 869
Case
[2024] FedCFamC2F 869
Decision Date

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia involved an application by Mr Malden to review a decision made by a senior judicial registrar. The original dispute between Mr Malden and Ms Danbury pertained to family law matters, including issues related to the care and custody of their child. After the father filed a Notice of Discontinuance, the senior judicial registrar issued orders in favour of the mother and awarded her costs. The father subsequently filed an application for review of the senior judicial registrar's decision. In response, the mother sought an order for costs under section 117 of the Family Law Act 1975 (Cth) on an indemnity basis.

The court was required to determine whether the father's application for review should be granted and, if not, whether the mother's request for indemnity costs was appropriate. The primary focus was on the merits of the father's arguments for the review and the legal standards applicable to awarding indemnity costs. The court examined the reasons behind the father's decision to discontinue the initial proceedings and assessed the validity of his arguments for review. Additionally, the court considered the criteria for awarding indemnity costs, including whether the mother's position was substantially justified and whether the father's application was frivolous or vexatious.

In dismissing the father's application for review, the court found that the father had not provided sufficient grounds to warrant a review of the senior judicial registrar's decision. The court held that the father's arguments were not compelling enough to justify overturning the previous orders. Consequently, the mother's request for indemnity costs was upheld. The court found that the father's application was not substantially justified, and thus, the mother was entitled to the costs sought. The father was ordered to pay the mother's costs of the initiating application and the review application, totalling $16,500, within 60 days of the order date.

The court's decision concluded that the father's application for review was dismissed, and he was ordered to pay the mother's costs of the initiating application and the review application. This outcome underscores the importance of substantiating arguments in family law proceedings and the potential consequences of pursuing unjustified applications. The specific amounts of costs were set by the court, reflecting the nature and complexity of the proceedings.

Orders

Orders of the court

SYC 4939 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR MALDEN

Applicant

AND:

MS DANBURY

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

9 JULY 2024

THE COURT ORDERS THAT:

1. The father’s Application for Review filed 14 May 2024 is dismissed.

2. Within 60 days of the date of these orders, the father pay the mother’s costs of and incidental to:

(a) the father’s Initiating Application filed on 7 July 2023 in the sum of $15,000; and

(b) the Application for Review filed 14 May 2024 assessed in the sum of $1,500.

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).

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

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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