Naczek and Dowler - [2009] FamCA 304

FAMILY COURT OF AUSTRALIA

NACZEK & DOWLER

[2009] FamCA 304

FAMILY LAW – PROCESS AND PROCEDURE – Costs

Family Law Act 1975 (Cth)

Black and Kellner (1992) FLC 92-287
Briese and Briese (1986) FLC 91-713
Carmel-Fevia and Fevia [2009] FamCA 9
CDJV v AJ [1998] HCA 67; 197 CLR 182
Kelly and Kelly No 2 (1981) FLC 91-108
Oriolo (1985) FLC 91-653
Weir and Weir (1993) FLC 92-338

APPLICANT:

Mr Naczek

RESPONDENT:

Ms Dowler

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLF

1222

2006

DATE DELIVERED:

21 April 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

21 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR ST JOHN SC

SOLICITOR FOR THE APPLICANT:

WESTMINSTER LAWYERS

COUNSEL FOR THE RESPONDENT:

MR NORTH SC with Mr WOOD

SOLICITOR FOR THE RESPONDENT:

LANDER & ROGERS

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

VICTORIA LEGAL AID

Orders

That by 4.00pm on 15 May 2009, each party provide to the other a financial statement that complies with Chapter 13 of the Family Law Rules 2004.
That by 20 May 2009, each party have the opportunity to request from the other such documents as may corroborate the items in the financial statement referred to or clarify any uncertainty arising there from.
That by 4.00pm on 5 June 2009, each party make available for inspection such documents requested as required by paragraph 2 of these orders provided that those documents are within that party’s possession or control.
That by 4.00pm on 25 May 2009, the wife file and serve any application in a case seeking costs supported by an affidavit of evidence upon which she intends to rely together with any submissions she wishes taken into account.
That by 4.00pm on 1 June 2009, the husband by way of reply, file and serve any response to the wife’s said application together with similar affidavit material and any submission upon which the husband relies.
That by 4.00pm on 8 June 2009, the wife file and serve any brief response to the affidavit filed by the husband.
That the issues of:
(a) whether it is appropriate to make an order for costs; and
(b)if it is so appropriate, whether the order should be made referring the matter to a registrar for an assessment or the quantum of costs to be otherwise fixed,
to be heard and determined in chambers.

IT IS NOTED that publication of this judgment under the pseudonym Naczek & Dowler is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1222 of 2006

MR NACZEK

Applicant

And

MS DOWLER

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

On 28 November 2008 I made orders relating to children’s proceedings.
On 11 February 2009, at the request of the parties, I conducted a hearing about finalising those parenting orders in so far as they related to the time that the husband was to spend with the children.
At that hearing, the wife…

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.

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Details

Case: [2009] FamCA 304
Decision Date: 21 April 2009

CaseChat Overview and Summary

In the matter of Naczek and Dowler, Justice Cronin of the Family Court of Australia considered an application concerning costs. The dispute revolved around the appropriate procedure for determining whether a costs order should be made and, if so, how the quantum of those costs should be assessed.

The court was required to determine two primary legal issues: first, whether it was appropriate to make an order for costs in the proceedings; and second, if an order for costs was deemed appropriate, whether the matter should be referred to a registrar for assessment or if the quantum of costs should be fixed by the court.

Justice Cronin's reasoning focused on establishing a clear procedural pathway for the resolution of the costs issues. The court issued a series of orders designed to facilitate the exchange of financial information and supporting documentation between the parties. These orders mandated the provision of financial statements, allowed for requests for corroborating documents, and required the inspection of such documents. Furthermore, the court set specific timelines for the filing and service of applications for costs, supporting affidavits, and any subsequent responses or submissions, thereby creating a structured framework for the parties to present their cases on costs.

The court ordered that the issues of whether to make a costs order and, if so, how to determine its quantum, would be heard and determined in chambers.

Orders

Orders of the court

That by 4.00pm on 15 May 2009, each party provide to the other a financial statement that complies with Chapter 13 of the Family Law Rules 2004.

That by 20 May 2009, each party have the opportunity to request from the other such documents as may corroborate the items in the financial statement referred to or clarify any uncertainty arising there from.

That by 4.00pm on 5 June 2009, each party make available for inspection such documents requested as required by paragraph 2 of these orders provided that those documents are within that party’s possession or control.

That by 4.00pm on 25 May 2009, the wife file and serve any application in a case seeking costs supported by an affidavit of evidence upon which she intends to rely together with any submissions she wishes taken into account.

That by 4.00pm on 1 June 2009, the husband by way of reply, file and serve any response to the wife’s said application together with similar affidavit material and any submission upon which the husband relies.

That by 4.00pm on 8 June 2009, the wife file and serve any brief response to the affidavit filed by the husband.

That the issues of:

(a) whether it is appropriate to make an order for costs; and

(b) if it is so appropriate, whether the order should be made referring the matter to a registrar for an assessment or the quantum of costs to be otherwise fixed,

to be heard and determined in chambers.

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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