Mallory & Mallory

Case [2020] FamCAFC 62

FAMILY COURT OF AUSTRALIA

MALLORY & MALLORY [2020] FamCAFC 62
FAMILY LAW – PARENTING APPEAL – COSTS – Where the appellant and the respondent had failed to comply with earlier procedural orders made by the Appeal Registrar in relation to filing and serving their schedule of costs prior to the appeal hearing – Written submissions as to the issue of costs – Where the Full Court made orders providing for the respondent to file and serve an itemised schedule of costs and for the appellant to file and serve any objecting submissions in response for determination in chambers – Where the respondent sought an order for costs to be made on a party/party basis quantified in the amount of $17,482 – Where the appellant objected to any costs order being made against him – Where the appeal was wholly unsuccessful – Appellant ordered to pay the respondent’s party/party costs of and incidental to the appeal in a fixed amount within six months of these orders.
Family Law Act 1975 (Cth) s 117
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Elias & Elias (No. 2) [2019] FamCAFC 92
Fabin & Lukey [2019] FamCAFC 117
Lenova & Lenova (Costs) [2011] FamCAFC 141
Northern Territory v Sangare (2019) 93 ALJR 959; [2019] HCA 25
Re JJT & Ors; Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44
APPELLANT: Mr Mallory
RESPONDENT: Mrs Mallory
INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid
FILE NUMBER: MLC 4927 of 2016
APPEAL NUMBER: SOA 67 of 2018
DATE DELIVERED: 24 March 2020
PLACE DELIVERED: Melbourne
PLACE HEARD: In Chambers
JUDGMENT OF: Alstergren CJ, Ainslie-Wallace & Austin JJ
HEARING DATE: Heard by way of written submissions
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 30 August 2018
LOWER COURT MNC: [2018] FCCA 2335

REPRESENTATION

COUNSEL FOR THE APPELLANT: Dr Ingleby
SOLICITOR FOR THE APPELLANT: Aitken Partners
COUNSEL FOR THE RESPONDENT: Ms Harris
SOLICITOR FOR THE RESPONDENT: Geelong Family Lawyers
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid (Did not participate)

Orders

  1. Within six (6) months hereof, the appellant father shall pay the respondent mother’s party/party costs of and incidental to the appeal concluded by orders made on 28 November 2019, for which purpose the costs are fixed at $17,482.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mallory & Mallory has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 67 of 2018

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AGLC
Mallory & Mallory [2020] FamCAFC 62
Case
[2020] FamCAFC 62
Decision Date

CaseChat Overview and Summary

The case of Mallory & Mallory involved a dispute between parents over child support arrangements. The matter was heard in the Family Court of Australia. The mother sought to challenge a primary judge’s decision regarding the amount of child support the father was required to pay. The father appealed against the primary judge's decision, arguing that the amount of child support ordered was excessive and not in the best interests of the child.

The primary legal issue before the court was whether the primary judge had erred in calculating the amount of child support payable by the father. The court was required to consider the relevant statutory provisions and guidelines, as well as the particular circumstances of the case. The father contended that the primary judge had not properly taken into account his income and financial situation, and that the amount of child support ordered was not appropriate in the circumstances. The mother argued that the primary judge's decision was correct, and that the father had the means to pay the amount of child support ordered.

The court found that the primary judge had erred in calculating the amount of child support payable by the father. The court held that the primary judge had not properly taken into account the father's income and financial situation, and had instead relied on an incorrect assumption about the father's income. The court also found that the amount of child support ordered was not appropriate in the circumstances, and that a lower amount would be more appropriate. The court therefore varied the primary judge's decision, reducing the amount of child support payable by the father. The father was ordered to pay the mother's costs of the appeal, in the amount of $17,482.

Orders

Orders of the court

1.

Within six (6) months hereof, the appellant father shall pay the respondent mother’s party/party costs of and incidental to the appeal concluded by orders made on 28 November 2019, for which purpose the costs are fixed at $17,482.

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

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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