RAMON & LEMOND - [2020] FamCA 801

FAMILY COURT OF AUSTRALIA

RAMON & LEMOND

[2020] FamCA 801

FAMILY LAW – COSTS – Application for costs made by the mother against the father following the parties entering into consent orders resolving all parenting issues in dispute – Where the mother contends that the father did not comply with s 60I of the Family Law Act1975 (Cth) by engaging in family dispute resolution with the mother prior to the commencing of proceedings – Where the father applied for and was successfully granted by a Registrar of the Court an exemption to the filing of a s 60I certificate due to circumstances of urgency – Where the mother contends that the father did not adhere to provisions for service of documents – Where the father acknowledges he experienced issues with the timely service of documents on the mother – Consideration of whether the failure to comply the father’s service requirements justifies making an order for costs against him – Consideration given to whether an order for costs should be made in circumstances where there is no determination of an application on its merits, as the parties have resolved their dispute by way of compromise – Application dismissed.

Family Law Act 1975 (Cth) ss 60I, 117
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Family Law Rules 2004 (Cth)
Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth)

Australian Securities Commission v Aust Home Investments Ltd (1993) 116 ALR 523
Brook & MacKenzie Pty Ltd v EL-Gra Engineering Pty Ltd (2015) 331 ALR 535
Byrnes v Brisconnections Management Company Limited (No 2) [2009] FCA 1432
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664
Mineralogy Pty Ltd v National Native Title Tribunal [1998] FCA 1700
Penfold v Penfold (1980) 144 CLR 311
Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex Parte Lai Qin (1997) 186 CLR 622
Stoian & Fiening (Costs) [2014] FamCA 944
Wrensted & Eades (2016) FLC 93-697

APPLICANT:

Ms Ramon

RESPONDENT:

Mr Lemond

FILE NUMBER:

SYC

7830

2018

DATE DELIVERED:

24 September 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney by web conference

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

27 August 2020

REPRESENTATION

THE APPLICANT IN PERSON

THE RESPONDENT IN PERSON

Orders

The mother’s Application for costs is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ramon & Lemond has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation…

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: [2020] FamCA 801
Decision Date: 24 September 2020

CaseChat Overview and Summary

In the matter of RAMON & LEMOND, the mother sought costs against the father following the parties entering into consent orders that resolved all disputed parenting issues. The mother's application for costs was based on two primary contentions: firstly, that the father had failed to comply with section 60I of the *Family Law Act 1975* (Cth) by not engaging in family dispute resolution with her before commencing proceedings, and secondly, that the father had not adhered to the provisions for the service of documents.

The court was required to determine whether the father's alleged non-compliance with the family dispute resolution requirements, and his acknowledged difficulties with the timely service of documents, justified an order for costs against him. A further consideration for the court was whether costs should be awarded in circumstances where the dispute was resolved by compromise rather than by a determination on the merits of the application. The father had previously been granted an exemption from filing a section 60I certificate by a Registrar due to circumstances of urgency.

McClelland DCJ dismissed the mother's application for costs. The court considered the father's prior successful application for an exemption from the section 60I certificate requirement, which was granted on grounds of urgency. While acknowledging the father's admission of issues with the timely service of documents, the court found that these failures did not warrant an order for costs, particularly in light of the parties having resolved their parenting dispute by way of consent orders. The court applied the principle that costs are generally awarded to indemnify a successful party, and in this instance, the application for costs was not successful.

The mother's Application for costs was dismissed.

Orders

Orders of the court

The mother’s Application for costs is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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