Martyn and Martyn (No 2)

[2020] FamCA 799

FAMILY COURT OF AUSTRALIA

MARTYN & MARTYN (NO. 2) [2020] FamCA 799

FAMILY LAW – COSTS – Where the father has made an Application for costs in respect to a successful Application to set aside a binding child support assessment – Where the Applicant father, however, was unsuccessful in setting aside arrears of child support that has been accumulated – Where it is agreed that the issue of costs is to be determined under s 117 of the Family Law Act 1975 – Whether the Applicant father has established circumstances justifying such an order  – Application dismissed.

Family Law Act 1975 (Cth) s 117

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123
Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664
Penfold v Penfold (1980) 144 CLR 311
Stoian & Fiening (Costs) [2014] FamCA 944

APPLICANT: Mr Martyn

RESPONDENT: Ms Martyn

FILE NUMBER: SYC 6514 of 2016

DATE DELIVERED: 24 September 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney by web conference

JUDGMENT OF: McClelland DCJ

HEARING DATE: 18 September 2020

REPRESENTATION           

COUNSEL FOR THE APPLICANT: Ms Givney

SOLICITOR FOR THE APPLICANT: Lama Family Lawyers

THE RESPONDENT IN PERSON

Orders

1. The Application in a Case filed on 27 July 2020 and sealed on 5 August 2020 seeking an order for costs in respect to the judgement of the Court dated 1 July 2020 is dismissed.

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 Martyn & Martyn 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).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6514 of 2016

Mr Martyn

Applicant

And

Ms Martyn

Respondent

REASONS FOR JUDGMENT

Introduction

1. This decision concerns an Application for costs by Mr Martyn (“the Applicant father”) who succeeded in an Application to set aside a binding child support agreement (“the child support Application”). My reasons for acceding to that Application are set out in my decision dated 1 July 2020 (“the child support decision”).[1] The child support decision also explains why I declined to make orders, as sought by the Applicant father, to waive or eliminate the arrears of child support that had been accumulated in the sum of $31,928.22 as at May 2020. 

   [1] [2020] FamCA 526.

Application

1. By Application in a Case sealed 5 August 2020, the Applicant father seeks that Ms Martyn (“the Respondent mother”) pay his costs in respect to the child support Application, by seeking the following orders be made:

   1. That the Respondent Mother pay to the…