Naylor & Naylor (No 2) - [2021] FCCA 1572

FEDERAL CIRCUIT COURT OF AUSTRALIA
Naylor & Naylor (No 2) [2021] FCCA 1572

File number(s): ADC 4381 of 2020

Judgment of: JUDGE BROWN

Date of judgment: 20 July 2021

Catchwords: FAMILY LAW – application for costs order following interim hearings – assessment of legal principles applicable to costs – nature of review proceedings – where respondent sought review of proceedings – where respondent has been unsuccessful in review proceedings – child related proceedings – where respondent sought to alter longstanding parenting arrangements for children – where there has been no significant change of circumstances – where proceedings between parties have been vigorously contested – where there are mutual allegations of child abuse, neglect and substance abuse – assessment of risk

Legislation: Australian Constitution Ch III
Family Law Act 1975 (Cth) pt VII, div 12A, ss 60CC, 68LA, 69ZN, 69ZQ, 69ZR, 117
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Federal Circuit Court Act 1999 (Cth) ss 3, 102, 103, 104
Federal Circuit Court Rules 2001 (Cth) Pt 20, rr 21.02, 21.10, 21.15, 21.16
Public Service Act 1999 (Cth)

Cases cited: Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Harris v Caladine (1991) 172 CLR 84
Inthe Marriage of Kohan (1992) 16 Fam LR 245
Naylor & Naylor [2021] FCCA 844
Uddin v Minister for Immigration & Anor [2017] FCCA 500

Number of paragraphs: 76

Date of hearing: 15 June 2021

Place: Adelaide

Solicitor for the Applicant: Degaris Lawyers

Counsel for the Applicant: Mr Boehm

Solicitor for the Respondent: Ryans Lawyers

Counsel for the Respondent: Ms Boyle

Counsel for the Independent Children's Lawyer: No Appearance
ORDERS

ADC 4381 of 2020

BETWEEN:
MS NAYLOR

Applicant

AND:
MR NAYLOR

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

20 JULY 2021

THE COURT ORDERS THAT:
1.The respondent pay the applicant a lump sum of costs fixed at TWO THOUSAND DOLLARS ($2,000.00).

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 under the pseudonym Naylor & Naylor (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION

Family law proceedings, involving the care of young and vulnerable children, very often have the potential to precipitate extreme emotions in the parties to such proceedings. For obvious reasons, such strong emotions do not always assist individuals to make calm and objective decisions regarding the approach to be adopted in their litigation and the appropriateness of the applications which are ultimately made.
The parties to proceedings under the Family Law Act 1975 (Cth) (‘the Act’) are not usually experienced litigators and do not have deep pockets. In such circumstances and in deference to the inherent emotional quotient in the vast majority of family law…

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: [2021] FCCA 1572
Decision Date: 20 July 2021

CaseChat Overview and Summary

This matter concerned an application by Ms Naylor (the mother) for costs against Mr Naylor (the father) following review proceedings in the Federal Circuit and Family Court of Australia. The parties are the parents of two children, X and Y. The mother sought an order that the father pay her costs, arguing that his application for review was ill-considered and that she had warned him of her intention to seek costs if he proceeded.

The legal issue before the Court was whether the father should be ordered to pay the mother's costs incurred in the review proceedings. The mother contended that her position regarding the review application's lack of merit had been vindicated by the outcome of those proceedings.

Brown J considered the mother's submissions that the review application was ill-conceived and that she had forewarned the father of her intention to seek costs. The Court noted that the conduct of the Independent Children’s Lawyer had become a point of controversy, leading to the protraction of the proceedings. The Court ultimately ordered that the respondent pay the applicant a lump sum of costs fixed at $2,000.00.

Orders

Orders of the court

ADC 4381 of 2020

BETWEEN:

MS NAYLOR

Applicant

AND:

MR NAYLOR

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

20 JULY 2021

THE COURT ORDERS THAT:

1. The respondent pay the applicant a lump sum of costs fixed at TWO THOUSAND DOLLARS ($2,000.00).

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.

Background

Background to the litigation

In subsequent proceedings, the conduct of the Independent Children’s Lawyer became a matter of controversy. This led to the protraction of the proceedings, and an initial interim decision of Senior Registrar Heuer was subject to review, by me, on 20 April 2021. BACKGROUND The parties to the proceedings are Ms Naylor (“the mother”) and Mr Naylor (“the father”). They are the parents of X born in 2012 and Y born in 2015. The mother seeks an order that the father pay her costs incurred in the review proceedings. It is her position that the review application was ill-considered and she forewarned the father of her view, and indicated that she would be seeking costs, if he proceeded. She contends that her position has been affirmed by the outcome of the review proceedings. The parties to these proceedings were in a relationship for approximately nine years that ended around September 2019. At separation, the two children lived with their mother. The mother commenced proceedings on 14 September 2020 seeking orders that would have the effect of confirming the children’s living arrangements, and creating a clear regime for the children to spend time with their mother. At this early stage, she alleged that the father had substance abuse issues and suffered poor psychiatric health. The father responded to the mother’s Application in mid-December 2020. He sought a shared care arrangement. He alleged that X and Y were subject to risk, in their mother’s care, because she suffered from depression and had screamed and yelled at the children during the relationship. Essentially, each party asserted that the other was a compromised parent to a significant degree. It was in this context that orders were made, by Senior Registrar Heuer, for the appointment of an Independent Children’s Lawyer for Y and X. It was also ordered that the parties attend a Child Dispute Conference on 4 February 2021. The parties were also subject to drug urine analysis, as directed by the Independent Children’s Lawyer. On 18 November 2020, Senior Registrar Heuer ordered that X and Y live with their mother and spend regular defined periods of time, with their father, on alternate weekends and on Wednesday afternoons. She directed that the case return to Court, on 9 February 2021, following the appointment of the Independent Children’s Lawyer and the parties’ attend a Conciliation Conference, which was directed towards the potential resolution of property issues arising between them. On 9 February 2021, Senior Registrar Heuer had Affidavit material, from each of the parties concerned. In addition, she heard submissions from the solicitors for each of the parties, as well as from the Independent Children’s Lawyer. In this context, the earlier orders of the Court, made in mid-November 2020, concerning parental responsibility and the children’s living arrangements were confirmed and further orders were made for the father to spend specified periods of time, with the children, including during the forthcoming school holidays and on X’s birthday.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	ADC 4381 of 2020
Judgment of:	JUDGE BROWN
Date of judgment:	20 July 2021
Catchwords:	FAMILY LAW – application for costs order following interim hearings – assessment of legal principles applicable to costs – nature of review proceedings – where respondent sought review of proceedings – where respondent has been unsuccessful in review proceedings – child related proceedings – where respondent sought to alter longstanding parenting arrangements for children – where there has been no significant change of circumstances – where proceedings between parties have been vigorously contested – where there are mutual allegations of child abuse, neglect and substance abuse – assessment of risk
Legislation:	Australian Constitution Ch III Family Law Act 1975 (Cth) pt VII, div 12A, ss 60CC, 68LA, 69ZN, 69ZQ, 69ZR, 117 Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Federal Circuit Court Act 1999 (Cth) ss 3, 102, 103, 104 Federal Circuit Court Rules 2001 (Cth) Pt 20, rr 21.02, 21.10, 21.15, 21.16 Public Service Act 1999 (Cth)
Cases cited:	Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175 Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Harris v Caladine (1991) 172 CLR 84 Inthe Marriage of Kohan (1992) 16 Fam LR 245 Naylor & Naylor [2021] FCCA 844 Uddin v Minister for Immigration & Anor [2017] FCCA 500
Number of paragraphs:	76
Date of hearing:	15 June 2021
Place:	Adelaide
Solicitor for the Applicant:	Degaris Lawyers
Counsel for the Applicant:	Mr Boehm
Solicitor for the Respondent:	Ryans Lawyers
Counsel for the Respondent:	Ms Boyle
Counsel for the Independent Children's Lawyer:	No Appearance

ADC 4381 of 2020
BETWEEN:	MS NAYLOR Applicant
AND:	MR NAYLOR Respondent
ORDER MADE BY:	JUDGE BROWN
DATE OF ORDER:	20 JULY 2021