SANDS & MOERS - [2013] FMCAfam 28

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SANDS & MOERS

[2013] FMCAfam 28

FAMILY LAW – Costs – application for costs by father following withdrawal of contravention of children’s orders proceedings by mother – parties have poor parenting relationship with one another – previous contested proceedings concerning living arrangements of child concerned – mother alleged father failed to provide child to spend time with her – father asserted failure to deliver child justified by mother’s breach of orders requiring her to supply him with her address details – at first mention date corrective orders made by consent requiring mother to supply address details to father – application withdrawn on morning allocated for contested hearing respondent criticised for failing to support children’s relationship with father – father put to unnecessary expense of potentially having to defended proceedings – wholly unsuccessful – matters to be considered – financial circumstances and financial circumstances of the parties.

Family Law Act 1975, ss.70NAF, 70NCB, 70NCD, 117
Federal Magistrates Act, ss.3

Moers & Sands [2007] FMCAfam 1067
Moers & Sands [2009] FMCAfam 1354
Moers & Sands [2011] FMCAfam 47

In the marriage of I and I (No.2) 22 Fam LR 557
Penfold v Penfold (1980) 5 Fam LR 517

Hale & Hale [2012] FMCAfam 684

Applicant:

MS SANDS

Respondent:

MR MOERS

File Number:

ADC 2864 of 2007

Judgment of:

Brown FM

Hearing date:

29 November 2012

Date of Last Submission:

29 November 2012

Delivered at:

Adelaide

Delivered on:

23 January 2013

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Ms Ross

Solicitors for the Respondent:

Clelands

ORDERS

The mother pay the father’s costs of the contravention application filed on 30 March 2012 fixed in the sum of eight thousand and eighty two dollars fifty cents ($8,082.50).
All other applications are otherwise dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 2864 of 2007

MS SANDS

Applicant

And

MR MOERS

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment relate to an application for costs following the withdrawal of a contravention application on the day allocated for the final determination of that application.
Mr Moers “the father” and Ms Sands “the mother” are the parents of [X] born [in] 2002. They have been engaged in bitter and protracted litigation regarding arrangements for [X]’s care since 2007. As a result, the Court has published three previous reasons for judgment, which detail the parties’ complex and conflicted relationship with one another.[1]
[1] See Moers & Sands [2007] FMCAfam 1067, Moers & Sands [2009] FMCAfam 1354 and Moers & Sands [2011] FMCAfam 47
In January 2011, I determined that [X]’s best interests dictated that he should live predominately with his father. Prior to this date, [X] had lived mainly with his mother. At this stage, I had heard evidence from a family consultant, who had prepared a family report for the…

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 SANDS & MOERS

Details

AGLC: SANDS & MOERS [2013] FMCAfam 28
Case: [2013] FMCAfam 28
Decision Date: 23 January 2013

CaseChat Overview and Summary

The case of Sands & Moers was heard before the Family Court of Australia. The dispute between the parties centred around allegations of contraventions of a parenting order, specifically regarding the father's access to his child. The mother, the respondent, alleged that the father had breached a parenting order by not allowing her to have contact with their child on the specified days. The father, the applicant, filed an application seeking enforcement of the parenting order and an order for the mother to pay his costs incurred from the contravention application.

The primary legal issue before the court was whether the mother had contravened the parenting order by interfering with the father's access to their child. The court also needed to consider the appropriate costs to be awarded to the father if it was found that the mother had indeed contravened the order. The court had to balance the competing interests of the parents and the welfare of the child in making its determination.

In delivering the judgment, the court found that the mother had contravened the parenting order by preventing the father from having access to their child. The court held that the mother's actions were unjustified and had caused unnecessary distress to the child. Consequently, the court ordered the mother to pay the father's costs of the contravention application in the sum of $8,082.50. The court dismissed all other applications made by the parties, finding no merit in their respective claims.

Orders

Orders of the court

The mother pay the father’s costs of the contravention application filed on 30 March 2012 fixed in the sum of eight thousand and eighty two dollars fifty cents ($8,082.50).

All other applications are otherwise 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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