Rohnan and Rohnan - [2010] FMCAfam 1091

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ROHNAN & ROHNAN

[2010] FMCAfam 1091

FAMILY LAW – Application for adjournment – summary dismissal – application for costs.

Family Law Act 1975, ss.4, 44, 74, 79, 117
Federal Magistrates Court Rules 2001, r.21.02

Allen v Allen [2007] FamCA 1018
Arman v Arman [2009] FamCA 8
Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225; (1993) 118 ALR 248
In the Marriage of Kohan (1992) 112 FLR 151; (1992) 16 Fam LR 245; (1993) FLC 92-340
In the Marriage ofRichardson (1999) 26 Fam LR 523
In the Marriage of Whitford (1979) 24 ALR 424; (1978) 35 FLR 445; (1979) 4 Fam LR 754; (1979) FLC 90-612
MacKenzie and MacKenzie (1978) 4 Fam LR 374; (1978) FLC 90-496
Munday & Bowman (1997) 22 FLR 321
Sindall & Taryn (2009) FamCAFC 108
Yunghanns v Yunghanns (2000) 26 Fam LR 331, (2000) FLC 93-029; [2000] FamCA 681

Applicant:

MS ROHNAN

Respondent:

MR ROHNAN

File Number:

SYC 2056 of 2010

Judgment of:

Monahan FM

Hearing date:

12 August 2010

Date of Last Submission:

12 August 2010

Delivered at:

Sydney

Delivered on:

12 August 2010

REPRESENTATION

Counsel for the Applicant:

None

Solicitors for the Applicant:

None

Counsel for the Respondent:

Mr Lloyd

Solicitors for the Respondent:

Champion Legal

ORDERS

The initiating application filed 7 April 2010!Unexpected End of Formula is dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $5,950.00 to be paid within three (3) months of the date of these Orders.

AND THE COURT NOTES THAT:

(A)The Applicant was called outside of Court at 2:00pm today and there was no response to the call.
(B)Pursuant to rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001, the Court may vary or set aside a judgment or order made in the absence of a party.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Federal Magistrate Monahan delivered this day will for all publication and reporting purposes be referred to as Rohnan & Rohnan.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 2056 of 2010

MS ROHNAN

Applicant

And

MR ROHNAN

Respondent

REASONS FOR JUDGMENT

Introduction

This matter was commenced by way of an application filed by

Ms Rohnan (“the wife”) on 7 April 2010 seeking various property and maintenance orders on a final and interim basis. The application was opposed by Mr Rohnan (“the husband”) in his response filed 22 June 2010.
The husband is seeking the summary dismissal of the wife’s application today. The wife’s application contains a request for interim orders to allow leave for her applications under ss.74 and 79 of the Family Law Act 1975 (“the Act”) to continue out of time. Interestingly, she does not seek such leave in respect of her final orders sought.

Background

The parties commenced cohabitation in 1993 and married in July 1997. They separated in February 2003 and a decree nisi for dissolution of marriage was made in October 2004 at the Federal Magistrates Court…

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 Rohnan and Rohnan

Details

AGLC: Rohnan and Rohnan [2010] FMCAfam 1091
Case: [2010] FMCAfam 1091
Decision Date

CaseChat Overview and Summary

The Federal Magistrates Court was called upon to decide an application made by Ms Rohnan seeking various property and maintenance orders on a final and interim basis against her former husband, Mr Rohnan. The husband opposed the application and sought the summary dismissal of the wife’s application. The wife also requested an adjournment on the basis that she was unable to raise sufficient funds to be properly represented and was engaged in child support proceedings with the United Kingdom Child Support Agency. The husband argued against the adjournment on the basis that the wife had been formerly represented by a specialised family law firm until recently and that there was no proper evidence that supported an assertion that she could not afford proper legal representation. The husband also argued that the wife was currently holidaying with her partner and children in Portugal and that he had no knowledge of any child support proceedings currently in the United Kingdom. The court refused the wife’s application for an adjournment and found that the husband should be at liberty to proceed with his summary dismissal action.

The court considered the wife’s application and found that she had failed to prosecute her claim vigorously, had shown further disrespect to the court by not attending today’s hearing, and there was evidence before the court that the wife was presently holidaying with her family. The court found that based on the evidence before it, the wife’s application was doomed to fail because she had not adequately explained her reasons for delaying the commencement of these proceedings or demonstrated hardship. Consequently, the wife’s application filed on 7 April 2010 was dismissed. The husband sought costs on an indemnity basis.

The court considered the husband’s costs application and found that it was appropriate to make an order for costs in favour of the husband. The court found that the wife had failed to attend or obtain any appropriate legal representation on two occasions and had been wholly unsuccessful in these proceedings. The court found that the circumstances in this case did not fall into the exceptional category which would justify costs being awarded on the basis other than party/party. Consequently, the husband’s costs were to be calculated in accordance with schedule 1 of the Federal Magistrates Court Rules. Following submissions from counsel, the court allowed the husband’s costs in the sum of $5950. The court gave the wife three (3) months to pay the costs referred to in this order.

Orders