Oscar & Traynor

Case [2008] FamCAFC 158


FAMILY COURT OF AUSTRALIA

OSCAR & TRAYNOR [2008] FamCAFC 158

FAMILY LAW – APPEAL – PARENTING – Where orders were made limiting the time the appellant father could spend with his children to commence and conclude at a contact centre – Orders providing for fixed day and time where father is a shift worker – Where father has a reported history of alcohol abuse

FAMILY LAW – APPLICATION IN A CASE – Application by the mother seeking orders that the father’s appeal is vexatious – Application dismissed where appeal unmeritorious but not vexatious

FAMILY LAW - COSTS – APPLICATION – Application by the mother for costs – Costs neither legal expenses nor costs of witnesses – Application dismissed

FAMILY LAW - COSTS – That the appellant pay the costs of the Independent Children’s Lawyer to be assessed

Family Law Act 1975 (Cth), s 117, s 118, s 121
Family Law Rules 2004, r 11.04, r 19.01
Family Law Regulations 1984, reg 11(6)(b)

AMS v AIF (1999) 199 CLR 160
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621
B and P [2000] FamCA 392
Cachia v Hanes (1994) 179 CLR 403
Cary v Owners of Strata Plan No. 7241 [2002] FMCA 18
DJC v SJS and Another (2005) 34 Fam LR 329
De Winter v De Winter (1979) FLC 90-605
Farquar and Farquar (No 2) [2008] FamCA 682
Fox v Percy (2003) 214 CLR 118
Gronow v Gronow (1979) 144 CLR 513
H & H [2006] FamCA 257
House v The King (1936) 55 CLR 499
Kettle & Green (Unreported, Family Court of Australia, Warnick J, 2 April 2008)
Maronis Holdings Ltd v Nippon Credit Australia Ltd [2002] NSWSC 838
Pittwater Council v Bolitho [2007] NSWLEC 355
Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184
Re Sullivan and Department of Industry, Science and Technology (1998) 51 ALD 767
Re W: Publication application (1997) FLC 92-756
Shephard v Blueberry Farms of Australia (Corindi) Ltd (2001) 162 FLR 339
Step v Northern Territory (2007) 20 NTLR 141
W (deceased) and W and Ors [2004] FamCA 319
Winter v Fleeton [2002] WASCA 73

APPELLANT: MR OSCAR
RESPONDENT: MS TRAYNOR
INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of NSW
FILE NUMBER: NCF 3046 of 2002
APPEAL NUMBER: NA 22 of 2008
DATE DELIVERED: 27 October 2008
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: May, Thackray & Benjamin JJ
HEARING DATE: 4 August 2008
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 22 February 2008
LOWER COURT MNC: [2008] FamCA 95

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Appellant appeared in person
SOLICITOR FOR THE RESPONDENT: Respondent appeared in person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Walker-Munro
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of NSW

Orders

  1. That the appeal be dismissed.

  2. That the appellant pay the costs of the Independent Children’s Lawyer to be assessed.

  3. That the application of the respondent filed 28…

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Details
AGLC
Oscar & Traynor [2008] FamCAFC 158
Case
[2008] FamCAFC 158
Decision Date

CaseChat Overview and Summary

The case of Oscar & Traynor concerns a dispute between the parents over parenting arrangements for their children. The father appealed against orders limiting the time he could spend with his children to specified days and times at a contact centre, given his employment as a shift worker and a history of alcohol abuse. The mother applied for the father's appeal to be dismissed as vexatious, and for costs. The court was tasked with deciding whether the father's appeal was unmeritorious and vexatious, whether the mother was entitled to costs, and whether the appellant should bear the costs of the Independent Children’s Lawyer.

The court found that while the father's appeal was unmeritorious, it was not vexatious. The reasoning hinged on the father's entitlement to appeal as a matter of right, despite the lack of merit in his arguments. The court dismissed the mother's application for costs, noting that the expenses incurred were neither legal expenses nor costs of witnesses. However, the appellant was directed to pay the costs of the Independent Children’s Lawyer, which were to be assessed.

The appeal was ultimately dismissed, and the application for costs by the mother was rejected. The appellant was ordered to pay the costs of the Independent Children’s Lawyer. The court did not deem the appeal vexatious but found it unmeritorious. The mother’s application for costs was dismissed, as the expenses were not categorised as legal expenses or witness costs. The appellant was to bear the costs of the Independent Children’s Lawyer, to be determined through an assessment process.

Orders

Orders of the court

1.

That the appeal be dismissed.

2.

That the appellant pay the costs of the Independent Children’s Lawyer to be assessed.

3.

That the application of the respondent filed 28 July 2008 be dismissed.

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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