Mohsen & Collings (No 2)

Case

[2023] FedCFamC2F 572


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Mohsen & Collings (No 2) [2023] FedCFamC2F 572

File number(s): PAC 2793 of 2021
Judgment of: JUDGE MURDOCH
Date of judgment: 17 May 2023
Catchwords:  FAMILY LAW – PARENTING – Summary Dismissal – where there are final orders in place for the child to live with the mother and spend no time with the father – where the father has attempted to re-agitate parenting proceedings on numerous occasions - where the applicant paternal  grandmother now seeks orders to spend time with the subject child – where the paternal grandmother has not seen the subject child for a period of over nine years – where these proceedings have caused the mother significant distress – finding that the paternal grandmother has not met the evidentiary burden to justify the making of orders as sought by her –Application of the paternal grandmother summarily dismissed – no order as to costs.
Legislation:

Family Law Act 1975 (Cth) ss 45A, 45A(2)(b), 60B, 60CA, 60CC, 60CG, 65D, 67N, 69ZN, 117(1), 117(2A)(a) to (g).

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021

Cases cited:

Beck v Beck  [2004] FamCA 92

Lindon v Commonwealth (No.2) [1996] HCA 14

Penfold & Penfold [1980] HCA 4

Pitman & Hynes (No 2) [2022] FedCFamC1F 373

Ritter & Ritter [2020] FamCAFC 86

Division: Division 2 Family Law
Number of paragraphs: 50
Date of hearing: 4 May 2023
Place: Parramatta
The Applicant  Litigant in Person
Solicitor for the Respondent  Mr Griffith, Griffiths Family Law
The Second Respondent  Litigant in Person (did not participate)

ORDERS

PAC 2793 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS A MOHSEN

Applicant

AND:

MS COLLINGS

First Respondent

MR MOHSEN
Second Respondent

order made by:

JUDGE MURDOCH

DATE OF ORDER:

17 may 2023

THE COURT ORDERS THAT:

1.The Initiating Application filed by the applicant paternal grandmother on 24 May 2021 as amended on 3 February 2022 and 19 February 2022 is dismissed.

2.There be no order as to costs.

3.The Response filed by the mother on 12 February 2023 and amended on 13 February 2023 is otherwise dismissed.

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.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Mohsen & Collings (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE MURDOCH

INTRODUCTION

  1. These are proceedings commenced by the paternal grandmother on 24 May 2021 seeking time with the subject child, B born in 2011 and currently 11 years and 6 months of age.

  2. For determination is the respondent mother’s application for the summary dismissal of the proceedings pursuant to section 45A of the Family Law Act 1975 (Cth) (“The Act”).

  3. The respondent father has not engaged in the proceedings.

  4. For the reasons that follow, the paternal grandmother’s application will be summarily dismissed.

    BACKGROUND

  5. Parenting proceedings as between the mother and father of B were heard on a final basis in the Family Court of Australia (as it was then known) over a period of five days commencing 9 January 2017.  Judgment was delivered on 25 January 2017 and orders were made that:-

    ·The mother have sole parental responsibility for B;

    ·B live with the mother; and

    ·B spend no time with the father.

  6. In the reasons delivered grounding such orders, findings were made that the father had occasioned family violence upon the mother during the course of the relationship and as a consequence the mother’s parenting capacity would be adversely impacted were there to be orders for B to spend time with the father.  The father’s appeal of such orders was dismissed by the Full Court of the Family Court (as it was then known) on 18 September 2017.

  7. The father filed a further Initiating Application in the Federal Circuit Court of Australia (as it was then known) on 2 October 2019 seeking orders that B spend time with him on a graduated basis.  The matter was transferred to the Family Court of Australia. The father’s interim application seeking orders for substituted service upon the mother was dismissed on 19 May 2020.  The father’s Application in a Case seeking an information order was dismissed by the court on 1 September 2020.  The father’s review of such dismissal was dismissed on 16 December 2020.  The father’s substantive application for time was thereafter summarily dismissed by the court on 30 March 2021.

  8. These proceedings were commenced by the paternal grandmother and paternal auntie, Ms BC, on 24 May 2021, some two months after the finalisation of the father’s application.   Orders were sought on a final basis that B have supervised visits with the paternal aunty and paternal grandmother for two hours each fortnight.  On an interim basis both a ‘location order’ was sought and an order dispensing with service of the application upon the respondent mother, together with an order that the parties engage a family therapist. Only the mother was listed as a respondent to the application. 

  9. The affidavit filed by the paternal auntie deposed that the mother and father of B separated in July 2013 and she had not seen B since his time.  She further deposed that neither herself nor the paternal grandmother would relay or communicate any information relating to B to the father or half-brother, Mr E.

  10. The amending application filed on 7 August 2021 listed only the paternal grandmother as the applicant and sought supervised visits by the paternal grandmother only with B.  The father was again not listed as a party to the proceedings. The affidavit filed by the paternal grandmother in support of the amending application and the interim orders sought deposed that:-

    ·The paternal grandmother had not seen B subsequent to the separation of his parents in July 2013.

    ·The paternal grandmother and her daughter would like to spend time with B.

    ·A location order is requested as the family does not know where the mother lives.

    ·“The Father of the child (my son) cannot spend any time with the child and cannot contact the mother and the child.  My son does not know where the mother lives and cannot provide an address to serve the mother.”

    ·Neither herself nor her daughter would relay or communicate any information in relation to B to his father and half-brother Mr E.

  11. Orders were made on 27 August 2021 joining B’s father as the second respondent.

  12. The paternal grandmother’s application for an information/location order for the respondent mother was heard and determined in Chambers on 6 September 2021.  On this day it was noted that:-

    ·The affidavit of the paternal grandmother filed in support of the information/location order did not depose as to any of the history between the mother and the father. It did not disclose that the mother and father had prior proceedings in the Family Court of Australia and final orders were made on a defended basis on 25 January 2017 that B live with the mother and spend no time with the father.  Those orders were the subject of an unsuccessful appeal by the father.  The father commenced proceedings again in 2019 seeking time with the father.  Such application was dismissed by the court on a summary basis on 30 March 2021.

    ·The court was not satisfied that the application had been served in accordance with section 67N of the Act. The court was not satisfied based on the evidence at the time that an information and/or location order was in the best interests of B.

  13. The application for an information order was dismissed and directions were made for the serving of the documents filed by the paternal grandmother to date in the proceedings upon the respondent father and the filing of an affidavit of service. The proceedings were adjourned for further directions.

  14. The second respondent father appeared at court on 12 October 2021 and advised that he did not wish to take part in the proceedings. In those circumstances it was noted that the court would make orders dispensing with requirement to serve the respondent father with any further orders or applications made in the proceedings. An Independent Children’s Lawyer was appointed on this occasion.

  15. On the 3 February 2022 the paternal grandmother filed an Amended Application seeking that:-

    ·B spend time with her initially each Saturday from 9:00am to 5:00pm for a period of four months;

    ·Thereafter B spend time with the paternal grandmother  in a fortnightly cycle each weekend from 9:00am Saturday until 5:00pm Sunday;

    ·That B spend time with the paternal grandmother on special occasions including Mother’s Day and Father’s Day;

    ·The mother advise the grandmother in a timely manner of any health related issues of B requiring medical attention; and

    ·The mother inform the grandmother of the child’s school details and do all things necessary to allow the grandmother to access the child’s school records and attend school activities.

  16. Filed with the Amended Application for Final Orders was a notice of Child Abuse, Family Violence or Risk.  Such notice asserted that the mother has subjected or exposed B to abuse, neglect or poses a risk to B.  The risk asserted was emotional – psychological abuse and the details provided stated:

    I DO NOT KNOW WHERE THE CHILD AND MOTHER RESIDE AND HAVE NOT SEEN MY GRANDSON SINCE JULY 2000 AND 13TH.  IT IS DIFFICULT TO REPORT TO OUTSIDE AUTHORITY IN THIS SITUATION.

    A MENTAL HEALTH ASSESSMENT OF [B] IS REQUIRED TO DETERMINE THE EXTENT OF THE PSYCHOLOGICAL HARM TO THE CHILD’S DEVELOPMENT, MENTAL HEALTH AND OVERALL WELL-BEING.

  17. A further Amended Initiating application was filed by the paternal grandmother on 19 February 2022 seeking final orders identical with those sought on 3 February 2022.

  18. On 11 August 2022 further orders and directions were made for service of the application upon the mother, facilitated by the registry manager at the Parramatta Registry of this court. The registry manager was to thereafter provide to Chambers an affidavit proving compliance with the substituted service orders made, ensuring that such affidavit did not state the service address of the mother.

  19. There was an appearance by Mr Griffiths, solicitor on behalf of the respondent mother and of the Independent Children’s Lawyer when the matter was listed before the court on 10 November 2022 and on this day orders and directions were made for the mother to file and serve her response material.

  20. On this same day, and some three months after orders had been made for the court to arrange for service of the application upon the mother, the paternal grandmother filed subpoena to:-

    ·Services Australia seeking “a document” containing the current residential address for the mother, the Medicare claims history statement for the mother from 1 January 2019 to 1 December 2021 and the mother’s Medicare benefits schedule claims records from 1 January 2019 to 1 December 202.

    ·Service New South Wales for “a document” containing the residential and postal address for the mother, a copy of the mother’s drivers licence and all documents issued from Housing New South Wales for the period 1 January 2019 through to 1 December 2021.

    ·And the New South Wales Commissioner of Police for “a document” containing the both the mother’s residential address and police records.

  21. The mother’s initial Response was filed on 12 February 2023.

  22. The Amended Response filed by the mother on 13 February 2023 seeks orders as follows:-

    ·That pursuant to section 44A of the Act the paternal grandmother’s application be summarily dismissed.

    ·That the order appointing the Independent children’s lawyer be discharged.

    ·That the paternal grandmother pay the mother’s costs of the proceedings.

  23. On 13 February 2023 the mother’s objection to the abovementioned subpoena was listed for determination and orders were made by consent setting aside all three subpoena with an order made that the documents produced by the three institutions be destroyed.

  24. On 21 February 2023 by consent of all parties the appointment of the Independent Children’s Lawyer was discharged and the application of the mother for the matter to be summarily dismissed was listed for hearing on 4 May 2023 with the paternal grandmother to have the assistance of a court arranged interpreter.

  25. The applicant paternal grandmother appeared for herself at the hearing of the mother’s application for summary dismissal on 4 May 2023. She had the assistance of an Arabic interpreter and two family members present for support and further assistance when required. Subsequent to the parties identifying the material they relied upon for the purposes of the hearing the matter was stood in the list for a short period of time to enable the paternal grandmother to have read to her by the interpreter the Case Outline relied upon by the mother. Upon the court resuming the paternal grandmother made an oral application for an adjournment of the hearing. I incorporate into these reasons the oral reasons delivered that day (now published in written form) refusing such application and the hearing continued.

    THE LEGAL PRINCIPLES

  26. The mother advised the court that she seeks a summary dismissal of the paternal grandmother’s application for time with B pursuant to section 45A(2)(b) of the Act.

  27. Section 45Aof the Act relevantly provides:

    No reasonable prospect of successfully prosecuting proceedings

    (2) The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:

    (a) the first party is defending the proceedings or that part of the proceedings; and

    (b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.

    When there is no reasonable prospect of success

    (3) For the purposes of this section, a defence or proceedings or part of proceedings need not be:

    (a)       hopeless; or

    (b)       bound to fail;

    to have no reasonable prospect of success.

  28. Thus the court does not need to be satisfied that the application is hopeless or bound to fail, but only that there is no reasonable prospect of success.

  29. The authorities are clear that the court should take a cautious approach to the summary dismissal of proceedings. In the oft cited High Court decision of Lindon v Commonwealth (No.2) (1996) 70 ALJR 541 at 544-54, Kirby J set out the following principles governing summary dismissal applications:

    1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief… is rarely and sparingly provided.

    2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.

    3. An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.

    4. … If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.

    5. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading…

    6. The guiding principle is… doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.’

    (Footnotes omitted)

  30. In determining whether proceedings should be summarily dismissed the court must only take into account the material that the paternal grandmother relies upon and take her case “at its highest”, unless it is established that her version is “inherently incredible or unreliable.” [1]

    [1] See Judgement of the Full Court in Ritter and Ritter [2020] FamCAFC 86 and Beck v Beck (2004) FLC 93-181

  31. This position must be qualified as these are child-related proceedings and thus Part VII of the Act is applicable.[2] Section 65D of the Family Law Act 1975 (Cth) (“the Act”) compels the court to make such parenting orders that are considered proper. Section 60CA provides that in deciding whether to make a particular parenting order the court is to regard the best interests of the child as the paramount consideration. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC of the Act. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.

    [2] See Harper J in Pitman & Hynes (No 2) [2022] FedCFamC1F 373.

  32. The court must therefore give effect to the principles set out in s 69ZN of the Act and:-

    ·consider the needs of B and the impact the conduct of the proceedings may have on him;

    ·actively direct, control and manage the conduct of the proceedings;

    ·conduct the proceedings in a way so as to safeguard B from being subjected to, or exposed to, abuse neglect or family violence; and

    ·conduct the proceedings in a way so as to safeguard the parties from family violence.

  33. The best interest considerations are set out in s60CC of the Act.

    THE EVIDENCE

  34. In circumstances where the paternal grandmother is a litigant in person and given the serious nature of the application to be determined by the court I have read all of the affidavits filed by the paternal grandmother in the proceedings.

  35. The mother relied upon the following documents:-

    ·The Amended Response to Initiating Application filed 13 February 2023;

    ·the Affidavit of the mother filed 12 February 2023;

    ·the Notice of Child Abuse, Family Violence or Risk filed 4 February 2023; and

    ·The Financial Statement of the mother filed 3 May 2023

  36. The following documents filed by the paternal grandmother have been read:-

    ·The further Amended Initiating Application filed 19 February 2022;

    ·the Affidavit of the paternal grandmother filed 19 February 2022;

    ·the Affidavit of the paternal grandmother filed 3 February 2022;

    ·the Affidavit of the paternal grandmother filed 7 August 2021; and

    ·the Financial Statement filed by the paternal grandmother on 3 May 2023.

    CONSIDERATION

  1. In addition to that set out above, the paternal grandmother’s evidence is that:-

    ·She has six children and 13 grandchildren and spends time with her grandchildren every week.  She babysits her youngest grandchild regularly including on an overnight basis.

    ·The paternal grandmother has not seen B since July 2013.  Prior to July 2013 she would see B every week which included her babysitting him.  She would regularly visit B and the mother at their home and help the mother with cooking meals, laundry and looking after B when the mother needed to undertake housework.

    ·She has never had any issues with the mother. She loved the mother very much and continues to do so.

    ·Her son; B’s father, has tried very hard since 2013 to obtain orders to see B that has been unsuccessful.  She was hoping that she would be able to spend time with B when the father received court orders to the effect but this did not happen.  She has now taken it upon herself to undertake the necessary steps to see B and spend time with him as she loves him very much and will do everything possible to be a part of his life.

    ·She does not believe that B knows he has a father or a brother unless the mother has told him that he does.  The father has since remarried and has an 11-year-old stepdaughter with whom he has a “perfect relationship”.

    ·It is in B’s best interests to grow knowing that he has a father, brother, stepsister, stepmother and an extended family that cares and loves him very much.

    ·The father was arrested and charged with a total seven counts of aggravated sexual assault and physical assault to which he pleaded not guilty.  The defended hearing of the father’s criminal charges ran for three weeks in the District Court of New South Wales.  The mother was cross examined extensively for six days and “ ..the jury took 10 minutes to reach a verdict of not guilty on each count.”

    ·The final hearing of the father’s application for time with B ran for four days in 2017 and:

    My son was poorly represented by his Barrister; the barrister relied on the transcript of the criminal law proceedings, which were submitted as evidence instead of undertaking extensive cross examination of [the mother and the court child expert.] This resulted in allegations made by [the mother] (which were identical to those of the criminal proceedings) being accepted to have occurred….  On the basis that my son’s Barrister had not appropriately challenged [the mother’s] allegations.

    ·The father is a loving and caring father, and he was not successful in obtaining orders that B spend time with him as the mother was adamant that her parenting ability of B would be compromised if he were to do so. 

    ·It is not her intention to contravene any court order made about B.  Changeover of B between the mother and paternal grandmother can be facilitated by a contact Centre or B’s aunties/uncles; the father will not need to have any contact with B.

    ·She intends to spend time with B without causing any stress or anxiety for the mother who can be assured that the strict conditions of the family court order will be complied with.

    ·The paternal family is extensive and undertakes many activities together including barbecues, attending water parks and holidaying together. B would benefit from spending time with his cousins.

    ·B would benefit from understanding his background and inherited identity including attempting to learn another language.  The paternal grandmother can provide B with a sense of belonging and understanding that he has an extended paternal family that loves him very much.

    ·To her knowledge B only has his mother and her family as a support network and she would like to provide an extension to extend that support network.

    ·The paternal grandmother would like to attend B’s school and sporting events so that he knows his paternal family supports everything he does during his life.

    ·She would love to celebrate B’s birthdays with him.  Every Father’s Day she thinks of B and feels upset for him; he should have the opportunity to celebrate Father’s Day knowing that he has a father that loves him very much.

    ·She does not know where B and his mother live, but she is happy to go and see B wherever he lives.

  2. The mother alleges that the father was a consistent perpetrator of family violence upon her during the course of the relationship. She provides detailed evidence as to the perpetration of physical and sexual assaults upon her, together with verbal abuse. The mother further deposes that the paternal grandmother refused to support her during the course of her relationship with the father and instead supported the father’s violent abuse.

  3. Attached to the mother’s affidavit are the orders and reasons of the trial judge with respect to the father’s application for time with B.  Relevantly, such judgment records that:-

    ·The father was convicted of assaulting the mother in an incident that occurred on 23 February 2013. The father’s appeal against such conviction was dismissed.

    ·The father was charged with seven criminal offences including that:-

    ·He had sexual intercourse with the mother without her consent between November 2009 and December 2009 and, in circumstances of aggravation, recklessly inflicted actual bodily harm upon her.

    ·He had sexual intercourse with the mother between August 2010 and January 2011 without her consent and, in circumstances of aggravation, recklessly inflicted actual bodily harm upon her.

    ·He assaulted the mother in September 2011 occasioning actual bodily harm.

    ·He had sexual intercourse with the mother in March 2012 without her consent and, in circumstances of aggravation, recklessly inflicted actual bodily harm upon her.

    ·On three occasions between September 2011 and February 2013 he assaulted the mother occasioning actual bodily harm.

    ·The father was acquitted of all charges.

    ·The paternal grandmother gave evidence on behalf of the father in the family law proceedings. She denied that an assault she was alleged to have witnessed had occurred and maintained that the mother had fabricated the incident. The trial judge did not accept her evidence and preferred that of the mother.

    ·The trial judge accepted and made findings that the father had perpetrated family violence upon the mother. The trial judge found that the mother remains fearful of the father and that is likely that her parenting capacity would be adversely affected if orders were made re-introducing B into the father’s life.

  4. The father’s appeal of this decision was unsuccessful. Such appeal did not challenge any of the findings of fact made by the trial judge.

  5. The mother further deposes that:-

    ·She felt physically sick and vomited upon receiving the current application before the court.

    ·She has significant fear for the safety of herself and B should the paternal family ascertain where she is living.

    ·The process of having to relive her past experiences to prepare her material for these proceedings have been very traumatic for her and she has suffered nightmares.

    ·It is her view that the paternal grandmother is being used by the father to obtain orders for time with B.

    ·B was only one year old when she and the father separated. B has not seen the paternal grandmother in more than nine years. B has no recollection or knowledge of her or the paternal family.

    ·The mother has the support and assistance of a close knit community of friends and B has sound and secure relationships within this supportive network.

  6. The paternal grandmother clearly does not accept that the father has perpetrated family violence upon the mother. She is of the view that the mother has simply fabricated the allegations. Whilst I accept, for the purpose of this determination, that the paternal grandmother has no intention of allowing B to come into contact with the father, I am mindful of her views as to the findings of family violence made and that she is not bound by the primary orders made in 2017. There is no evidence as to why the paternal grandmother was seeking information as to the mother’s current residential address after orders had been made that the court would arrange for service of her application upon the mother.

  7. B is now over 11 ½ years old. He has not seen the paternal grandmother or the paternal family at all in the last ten years. The paternal grandmother did not identify any evidence to support a finding that B, who was not even two years old at the time of the separation of his parents, would remember the paternal family. There is no evidence that there is an existing relationship between B and the paternal grandmother.

  8. The mother is the uncontested resident parent. There is a risk that allowing these proceedings to continue will negatively impact on her parenting ability and will thus negatively impact B’s welfare. There is a further risk that the continuation of these proceedings will enable the paternal family to ascertain the location of the mother and B which, as has been determined by the trial judge, is not in B’s best interests. 

  9. I accept the paternal grandmother’s love for B and her desire to establish a relationship with him.  She has not however adduced evidence to establish that it is in B’s best interest to re-establish a relationship with her. Her belief as to what is in B’s best interests is an insufficient basis upon which to make a factual finding.

  10. Having regard to the findings made by the trial judge as to the promotion of B’s best interests, I am not satisfied that the paternal grandmother has met her evidentiary burden of establishing that she has a reasonable prospect of obtaining orders that B spend time with her.  It is in B’s best interest that the court actively manage the conduct of these proceedings and thus the paternal grandmother’s application will be dismissed.    

    COSTS

  11. The mother seeks an order that the paternal grandmother pay her costs of these proceedings at the scale set by the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021. The mother submitted that costs are sought in circumstances where the mother has a grant of legal aid to defend the orders sought by the paternal grandmother. The paternal grandmother opposes costs in circumstances where she is reliant on the pension as her sole means of financial support.

  12. Each party to proceedings is to bear their own costs unless the court is of the opinion that there are circumstances that justify the making of a costs order. [3] Although there must be a finding of justifiable circumstances prior to making an order, there is no additional or special onus on the party seeking such an order.[4] Subsections 117(2A)(a) to (g) of the Act set out the matters that must be taken into account in determining whether to exercise the court’s discretion and make a costs order. No one factor must be present, and no particular factor has more or less weight than any other. There may however be a dominant or outstanding feature that makes an order for costs appropriate.

    [3] Section 117(1) of the Act

    [4] Penfold & Penfold (1980) FLC 90-800; [1980] HCA 4

  13. The paternal grandmother relies upon an age pension to support herself. She deposes that she is the sole registered proprietor of a property with a value of $980,000. The mother is not engaged in paid employment and is also reliant upon government benefits to support herself. She is in receipt of a grant of legal aid.

  14. Whilst the paternal grandmother has been wholly unsuccessful in these proceedings, I am not satisfied there are circumstances to justify a departure from the usual provision that each party pays their own costs and I refuse to make any orders as to costs.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch.

Associate:

Dated: 17 May 2023  


Actions
Download as PDF Download as Word Document


Cases Citing This Decision

0

Cases Cited

3

Statutory Material Cited

0

Ritter & Ritter [2020] FamCAFC 86
Ritter & Ritter [2020] FamCAFC 86
Pitman & Hynes (No 2) [2022] FedCFamC1F 373