Sawer and Hugh - [2010] FamCA 362

FAMILY COURT OF AUSTRALIA

SAWER & HUGH

[2010] FamCA 362

FAMILY LAW – STAY – Application for a stay of orders in relation to costs, payment of a fine and interim parenting orders – other misconceived applications – costs of other parties including independent children’s lawyer where party unsuccessful in application

Family Law Act 1975 (Cth) ss 70NBA(1)(b)(ii), 117
Family Law Rules 2004 (Cth) rr 9.05, 22.11(2), Schedule 3

APPLICANT:

Mr Sawer

RESPONDENT:

Ms Hugh

INDEPENDENT CHILDREN’S LAWYER:

David Walker & Co

FILE NUMBER:

LNC

511

2008

DATE DELIVERED:

11 May 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne and Launceston via videolink

JUDGMENT OF:

Bennett J

HEARING DATE:

22 and 23 April 2010

REPRESENTATION

FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Lewis

SOLICITOR FOR THE RESPONDENT:

Temple-Smith Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

MR D Walker

Orders

IT IS ORDERED:

That I dispense with the operation of Rule 9.05 of the Family Law Rules 2004 with the effect that the respondent mother and the independent children's lawyer can seek a dismissal of the father's application in a case filed 16 April 2010 with costs notwithstanding that neither has filed a response to the father's application in a case nor any evidence.
That until further order the enforcement of paragraph 1 of the Order made on 17 March 2010 (as to costs) be stayed pending determination of the father's appeal in proceeding SOA24 of 2010.
That until further order the enforcement of paragraph 2 of the Order made on 17 March 2010 (being a fine) be stayed pending determination of the father's appeal in proceeding SOA24 of 2010.
That the father pay a contribution towards the mother's costs of an incidental to this application fixed in the sum of $1,400 and make such payment by 4.00 p.m. on 12 July 2010.
That the father pay a contribution towards the costs of the independent children’s lawyer of and incidental to this application fixed in the sum of $1,200 and make such payment by 4.00 p.m. on 12 July 2010.
That otherwise the application of the husband filed 16 April 2010 be and is hereby dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: LNC 511 of 2008

MR SAWER

Applicant

And

MS HUGH

Respondent

AND

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Background

At a hearing which proceeded before me in Hobart on 15, 16 and 17 March 2010 I found that the father had without reasonable excuse contravened a parenting order in relation to E and H both born in January 1999 and J born in June 1996. The contraventions were constituted by eleven separate counts. On 17 March 2010 I made consequential orders requiring the father to pay the mother’s costs of the contravention application fixed in the sum of $6,276 and 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.

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Details

Case: [2010] FamCA 362
Decision Date: 11 May 2010

CaseChat Overview and Summary

In the matter of *Sawer and Hugh*, Bennett J of the Family Court of Australia considered an application by the father filed on 16 April 2010. The dispute concerned the dismissal of the father's application, with the respondent mother and the independent children's lawyer seeking this outcome despite not having filed formal responses or evidence.

The primary legal issue before the court was whether to dispense with Rule 9.05 of the Family Law Rules 2004 to allow the dismissal of the father's application. Additionally, the court had to determine the enforcement of prior orders regarding costs and a fine, pending the father's appeal in a related proceeding.

Bennett J reasoned that it was appropriate to dispense with Rule 9.05, permitting the dismissal of the father's application. The court also ordered a stay on the enforcement of the costs order and the fine made on 17 March 2010, pending the determination of the father's appeal. The father was ordered to pay a contribution towards the mother's costs and the independent children's lawyer's costs in relation to the application filed on 16 April 2010.

Ultimately, the father's application filed on 16 April 2010 was dismissed, with specific orders made regarding costs and the stay of prior enforcement actions.

Orders

Orders of the court

IT IS ORDERED:

That I dispense with the operation of Rule 9.05 of the Family Law Rules 2004 with the effect that the respondent mother and the independent children's lawyer can seek a dismissal of the father's application in a case filed 16 April 2010 with costs notwithstanding that neither has filed a response to the father's application in a case nor any evidence.

That until further order the enforcement of paragraph 1 of the Order made on 17 March 2010 (as to costs) be stayed pending determination of the father's appeal in proceeding SOA24 of 2010.

That until further order the enforcement of paragraph 2 of the Order made on 17 March 2010 (being a fine) be stayed pending determination of the father's appeal in proceeding SOA24 of 2010.

That the father pay a contribution towards the mother's costs of an incidental to this application fixed in the sum of $1,400 and make such payment by 4.00 p.m. on 12 July 2010.

That the father pay a contribution towards the costs of the independent children’s lawyer of and incidental to this application fixed in the sum of $1,200 and make such payment by 4.00 p.m. on 12 July 2010.

That otherwise the application of the husband filed 16 April 2010 be and is hereby 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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