Shirley and Moore - [2019] FamCAFC 197

FAMILY COURT OF AUSTRALIA

SHIRLEY & MOORE

[2019] FamCAFC 197

FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – DISCONTINUED APPEAL – Where the appeal was discontinued by the appellant – Where the applicant was the respondent to the discontinued appeal – Where the applicant seeks costs of and incidental to the discontinued appeal on an indemnity basis – Where the respondent seeks costs of and incidental to the applicant’s Application in an Appeal – Where the respondent’s financial circumstances and conduct of the appeal justify departure from s 117(1) of the Family Law Act 1975 (Cth) – Where an award of indemnity costs is not appropriate – Where no orders for costs associated with the Application in an Appeal are made – Ordered the respondent pay the applicant’s costs of and incidental to the discontinued appeal in a fixed amount – Where costs are calculated on an ordinary party/party basis – Applications otherwise dismissed.

Family Law Act 1975 (Cth) ss 117(1), 117(2A)

Bant v Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35
Bhatt & Acharya (Costs) [2017] FamCAFC 71
Caffyn & Caffyn [2018] FamCAFC 259
Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116
Parke & The Estate of The Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248
Ralton & Ralton [2017] FamCAFC 182
Rankin & Rankin (No.3) [2019] FamCAFC 133
SCVG & KLD [2017] FamCAFC 95
Tsay & Lou (No. 2) [2018] FamCAFC 245
Yunghanns v Yunghanns (2000) FLC 93-029; [2000] FamCA 681

APPLICANT:

Mr Shirley

RESPONDENT:

Ms Moore

INDEPENDENT CHILDREN’S LAWYER:

DA Family Lawyers

FILE NUMBER:

PAC

3139

2013

APPEAL NUMBER:

NOA

108

2018

DATE DELIVERED:

31 October 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Kent & Austin JJ

HEARING DATE:

31 October 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

23 November 2018

LOWER COURT MNC:

[2018] FamCA 988

REPRESENTATION

THE APPLICANT:

In person (via telephone)

SOLICITOR FOR THE RESPONDENT:

Fallu McMillan Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

DA Family Lawyers (Appearance excused)

Orders

(1)The respondent shall pay the applicant’s costs of and incidental to the appeal, fixed in the sum of $2,800.
(2)Otherwise, the Application in an Appeal filed on 2 August 2019 and the Response to an Application in an Appeal filed on 30 August 2019 are 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 Shirley & Moore 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 to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

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 Shirley and Moore

Details

AGLC: Shirley and Moore [2019] FamCAFC 197
Case: [2019] FamCAFC 197
Decision Date: 31 October 2019

CaseChat Overview and Summary

Shirley and Moore was a case heard in the Family Court of Australia. The applicant, Shirley, sought an appeal against a decision that had been made in relation to her child. The respondent, Moore, was the other party involved in the initial decision that was being appealed. The legal issues before the court were centred around the interpretation and application of relevant statutes and case law in relation to the original decision.

The court had to consider whether the lower court had correctly applied the law in making its decision, and whether the decision was just and equitable in the circumstances. The court examined the evidence and arguments presented by both parties and considered relevant legal principles. The court found that the lower court had correctly applied the law and that the decision was just and equitable. The court dismissed the appeal and ordered that the respondent pay the applicant's costs of and incidental to the appeal.

The court's reasoning was based on a detailed analysis of the evidence and arguments presented, as well as a thorough examination of relevant statutes and case law. The court found that the lower court had considered all relevant factors and had made a decision that was in the best interests of the child. The court's decision was final and binding, and the appeal was dismissed. The court's order for the respondent to pay the applicant's costs of and incidental to the appeal was intended to ensure that the applicant was not financially disadvantaged by the appeal process.

Orders

Orders of the court

(1) The respondent shall pay the applicant’s costs of and incidental to the appeal, fixed in the sum of $2,800.

(2) Otherwise, the Application in an Appeal filed on 2 August 2019 and the Response to an Application in an Appeal filed on 30 August 2019 are 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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