Myron & Milson (No 2) - [2024] FedCFamC1F 336

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Myron & Milson (No 2) [2024] FedCFamC1F 336

File number(s): BRC 4579 of 2022

Judgment of: BAUMANN J

Date of judgment: 17 May 2024

Catchwords: FAMILY LAW – COSTS – Where the mother sought an order for costs in a fixed sum – Where the father did not file a response – Father to pay costs of mother fixed in a sum by refence to the total grant of legal aid received from Legal Aid Queensland

Legislation: Family Law Act 1975 (Cth) s 117

Cases cited: Myron & Milson [2023] FedCFamC1F 1077

Division: Division 1 First Instance

Number of paragraphs: 13

Date of last submissions: 15 January 2024

Date of hearing: On the papers in chambers

Place: Brisbane

Solicitor for the Applicant: Litigant in person

Solicitor for the Respondent: KLM Solicitors
ORDERS

BRC 4579 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR MYRON

Applicant

AND:
MS MILSON

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

17 MAY 2024

Amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 28 June 2024.
THE COURT ORDERS:
1.That within sixty (60) days of the date of this Order, the Applicant pay to the Respondent the costs of and incidental to the Application filed 20 April 2022 and the Response filed 6 July 2022 by refence to the total grant of legal aid received from Legal Aid Queensland, fixed in the sum of $4,797.10.
~~the solicitors for the mother, within sixty days, in circumstances where~~

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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Myron & Milson has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:

Mr Myron (“the father”) filed a parenting Application on 20 April 2022 seeking to discharge and then vary Orders relating to his two youngest children now aged 13 and 15 years.
Final parenting Orders were made by a Family Court judge (as she then was) in February 2019, the effect of which was the father was restrained from communicating with the children and no prescribed order for time was made.
After the father’s Application was filed, Ms Milson (“the mother”) filed a Response on 6 July 2022 seeking…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Myron & Milson (No 2)

Details

AGLC: Myron & Milson (No 2) [2024] FedCFamC1F 336
Case: [2024] FedCFamC1F 336
Decision Date: 17 May 2024

CaseChat Overview and Summary

The case of Myron & Milson (No 2) involved the applicant, Mr Myron, and the respondent, Ms Milson, in a family law dispute. Ms Milson sought an order for costs in a fixed sum against Mr Myron, who had not filed a response to her application. The case was heard by Baumann J in the Federal Circuit and Family Court of Australia. The legal issues that the court was required to decide included the assessment of costs based on the total grant of legal aid received by the mother from Legal Aid Queensland and whether the father should be held liable for the costs of the mother's legal representation due to the unsuccessful nature of his application.

The court found that the father had regained his professional licence and owned real estate, indicating a capacity to pay costs. The mother's employment and level of remuneration met the means test requirements for legal aid, and she was entitled to contest the father's application as it was contrary to the best interests of the children. The court concluded that the circumstances justified an order for costs against the father. The quantum of costs sought by the mother was deemed reasonable, considering the use of legal aid and the unmeritorious nature of the father's application. The court emphasised that there was no reason for taxpayers to bear the financial consequences of the father's unsuccessful application.

The court ordered that within sixty days, the father must pay the mother the costs of and incidental to the application and response, fixed in the sum of $4,797.10. This payment is to be made to the mother's solicitors, who will in turn make the necessary payment to Legal Aid Queensland. The form of the order is subject to review or variation in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

Orders

Orders of the court

BRC 4579 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MYRON

Applicant

AND:

MS MILSON

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

17 MAY 2024

Amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 28 June 2024.

THE COURT ORDERS:

1. That within sixty (60) days of the date of this Order, the Applicant pay to the Respondent the costs of and incidental to the Application filed 20 April 2022 and the Response filed 6 July 2022 by refence to the total grant of legal aid received from Legal Aid Queensland, fixed in the sum of $4,797.10.

the solicitors for the mother, within sixty days, in circumstances where

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

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

With an eye to s 117(2A), I find:(a)although I have no current financial details of the parties, the father has regained his professional licence (after the QCAT decision) and has the capacity to earn income. The mother is employed. The father owns real estate;(b)the mother’s level of renumeration from employment was such that after she provided an initial contribution of $990 to Legal Aid Queensland, she otherwise satisfied the relevant “means test” requirements of Legal Aid Queensland.(c)the father was wholly unsuccessful in his Application and was on notice, from the mother’s initial Response and her persistent opposition to the father’s Application, that she resisted the Application and would seek an order for costs; and(d)the mother was obliged, on her position, to contest the father’s Application as being contrary to the best interests of the children. She was entitled to seek legal representation and did so.CONCLUSION The circumstances justify an order for costs against the father. In some respects, the quantum of costs sought may well be less than might have been payable had the mother retained private legal representation and, in the same circumstances as do exist, sought an order for indemnity costs. I agree with the mother’s submissions that there “is no reason why the legal aid authority (the taxpayers, in essence) should carry the financial consequences of the Applicant father’s unmeritorious Application”. I make the order as sought by the mother, with payment to be made to the solicitors for the mother, within sixty days, in circumstances where I accept the mother’s solicitors will make such payment as necessary to Legal Aid Queensland.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	BRC 4579 of 2022
Judgment of:	BAUMANN J
Date of judgment:	17 May 2024
Catchwords:	FAMILY LAW – COSTS – Where the mother sought an order for costs in a fixed sum – Where the father did not file a response – Father to pay costs of mother fixed in a sum by refence to the total grant of legal aid received from Legal Aid Queensland
Legislation:	Family Law Act 1975 (Cth) s 117
Cases cited:	Myron & Milson [2023] FedCFamC1F 1077
Division:	Division 1 First Instance
Number of paragraphs:	13
Date of last submissions:	15 January 2024
Date of hearing:	On the papers in chambers
Place:	Brisbane
Solicitor for the Applicant:	Litigant in person
Solicitor for the Respondent:	KLM Solicitors

BRC 4579 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR MYRON Applicant
AND:	MS MILSON Respondent

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	17 MAY 2024