Adamo & Vinci (No. 2) - [2020] FamCAFC 229

FAMILY COURT OF AUSTRALIA

ADAMO & VINCI (NO. 2)

[2020] FamCAFC 229

FAMILY LAW – APPEAL – COSTS – Written submissions as to the issue of costs – Where the applicant husband was wholly unsuccessful on his application for leave to appeal – Where the respondent wife was put to the expense of responding to and opposing the husband’s application – Costs not particularised – Financial disparity – Quantum of costs – Husband to pay the wife’s costs of and incidental to the application for leave to appeal in a fixed sum.

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) Sch 3

Adamo & Vinci [2020] FamCAFC 208

APPLICANT:

Mr Adamo

RESPONDENT:

Ms Vinci

INDEPENDENT CHILDREN’S LAWYER:

Stidwill Solicitors

FILE NUMBER:

SYC

3598

2018

APPEAL NUMBER:

EAA

100

2020

DATE DELIVERED:

11 September 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

In Chambers

JUDGMENT OF:

Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE:

Heard by way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

7 July 2020

LOWER COURT MNC:

[2020] FamCA 537

REPRESENTATION:

THE APPLICANT:

Litigant in person

COUNSEL FOR THE RESPONDENT:

Mr Livingstone

SOLICITOR FOR THE RESPONDENT:

Alidenes & Co Solicitor

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Stidwill Solicitors (not participating)

Order

The applicant husband pay the respondent wife’s costs of and incidental to the application for leave to appeal fixed in the sum of $3,000 within twenty-eight (28) days of the date of these orders.

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 Adamo & Vinci (No. 2) 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 SYDNEY

Appeal Number: EAA 100 of 2020
File Number: SYC 3598 of 2018

Mr Adamo

Applicant

And

Ms Vinci

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 25 August 2020, the Full Court in Chambers refused leave to Mr Adamo (“the husband”) to appeal an order made by a judge of the Family Court on 7 July 2020 dismissing an application for permission to call an expert witness brought by him as part of pending property settlement and parenting proceedings between himself and Ms Vinci (“the wife”) (Adamo & Vinci [2020] FamCAFC 208).
In her responding submissions on the issue of leave to appeal filed on 21 August 2020, the wife sought an order for costs in her favour if the husband’s application for leave to appeal was refused.
The husband’s submissions on the issue of leave to…

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 Adamo & Vinci (No. 2)

Details

AGLC: Adamo & Vinci (No. 2) [2020] FamCAFC 229
Case: [2020] FamCAFC 229
Decision Date: 11 September 2020

CaseChat Overview and Summary

In Adamo & Vinci (No. 2), the Full Court of the Family Court of Australia was asked to decide whether the husband, Mr Adamo, should pay the costs of the wife's, Ms Vinci, response to his wholly unsuccessful application for leave to appeal a decision of the Family Court. The lower court had dismissed Mr Adamo's application to call an expert witness in his ongoing property settlement and parenting proceedings with Ms Vinci. The husband subsequently applied for leave to appeal this decision to the Full Court, which was refused on 25 August 2020.

The legal issue the Full Court was required to decide was whether the husband should be ordered to pay the costs of the wife's response to the application for leave to appeal. Under section 117 of the Family Law Act 1975 (Cth), each party is generally responsible for their own costs. However, the court may order a party to pay the costs of another if circumstances justify it. The wife argued that she should be awarded costs because the husband's application was unsuccessful and she was put to the expense of responding to it. The husband opposed the making of a costs order.

The Full Court found that the wife should be awarded costs because the husband's application was wholly unsuccessful and she was put to expense in opposing it. The wife's claim for costs was not particularised and was not aligned with the costs schedule in the Family Law Rules 2004 (Cth). However, the Full Court concluded that a costs order was appropriate in the circumstances. The husband was ordered to pay the wife's costs of and incidental to the application for leave to appeal, fixed in the sum of $3,000. The Full Court noted that the husband was in a weaker financial position than the wife but this did not preclude the making of a costs order if otherwise appropriate.

The Full Court ordered the husband to pay the wife's costs of and incidental to the application for leave to appeal, fixed in the sum of $3,000.

Orders