Arias & Grasso (No 4)

Case [2024] FedCFamC2F 1837


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Arias & Grasso (No 4) [2024] FedCFamC2F 1837

File number(s): NCC 4198 of 2021
Judgment of: JUDGE CARTY
Date of judgment: 18 December 2024
Catchwords:

FAMILY LAW – COSTS – De Facto property proceedings – Where respondent de facto husband continued to deny allegations of physical family violence until confronted with criminal history – Where respondent refused reasonable offer or compromise – Where respondent’s conduct of the trial increased the costs of the applicant

FAMILY LAW – COSTS – Where relevant factors considered – Where court satisfied that there are circumstances which justify a costs order

FAMILY LAW – COSTS – Applicant seeks indemnity costs – Where settled practice is to order costs on a party and party unless there is an exceptional, unusual or extreme circumstance.

FAMILY LAW – COSTS – Party and party costs – Costs awarded in a fixed amount calculated in accordance with Scale  

Legislation:

Family Law Act 1975 (Cth) ss 44, 90SM, 117

Federal Circuit and Family Court of Australia Act 2021 ss 190, 191

Federal Circuit and Family Court of Australia (Family Law) Rules 2021, rr 1.04, 6.01, 12.17, sch 1, sch 3

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 sch 1

Cases considered:

Arias & Grasso [2022] FedCFamC2F 47

Arias & Grasso (No 2) [2022] FedCFamC2F 1191

Arias & Grasso (No 3) [2024] FedCFamC2F 452

Bant & Clayton (Costs) [2016] FamCAFC 35; (2016) 56 Fam LR 31

Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 118 ALR 248

Fitzgerald & Fish [2005] FamCA 158

Garrod & Davenport [2021] FamCA 276

In the Marriage of Kohan (1992) 16 FamLR 245; (1993) FLC 92-340

In the Marriage of Munday & Bowman (1997) 22 Fam LR 321

Medlon & Medlon (No 6) (Indemnity Costs) [2015] FamCAFC 157; (2015) FLC 93-664

Pascoe & Larsen (No 2) [2022] FedCFamC1A 126

Penfold and Penfold [1980] HCA 4; (1980) 144 CLR 311

Stanford & Stanford (2012) 247 CLR 108

Division: Division 2 Family Law
Number of paragraphs: 66
Date of last submission/s: 17 July 2024
Date of hearing: On the papers
Place: Newcastle
Solicitor for the Applicant: Baker Love Lawyers
The Respondent: Self Represented

ORDERS

NCC 4198 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS ARIAS

Applicant

AND:

MR GRASSO

Respondent

ORDER MADE BY:

JUDGE CARTY

DATE OF ORDER:

18 DECEMBER 2024

THE COURT ORDERS THAT:

1.The respondent will pay the applicant’s costs in the property proceedings on a party and party basis fixed in the sum of $34,015.

2.The respondent will pay the applicant’s costs in the Application in a Proceeding filed on 9 May 2024 fixed in the sum of $3,142.

3.Payment by the respondent of the amounts due to the applicant pursuant to Order 1 and Order 2 hereto will be made within 14 days of the date of this order, or upon settlement of the sale of the real…

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AGLC
Arias & Grasso (No 4) [2024] FedCFamC2F 1837
Case
[2024] FedCFamC2F 1837
Decision Date

CaseChat Overview and Summary

In the matter of Arias & Grasso (No 4), the Federal Circuit and Family Court of Australia addressed the issue of costs in de facto property proceedings. The dispute arose between Ms Arias and Mr Grasso, who had been in a de facto relationship. The primary focus was on the costs incurred during the proceedings, particularly regarding the respondent's conduct throughout the trial. Mr Grasso continued to deny allegations of physical family violence until confronted with his criminal history, and his refusal to accept a reasonable offer or compromise contributed to the increased costs for Ms Arias. The court needed to determine whether the circumstances justified a costs order, particularly whether the respondent's conduct warranted indemnity costs.

The court considered the relevant factors, including the respondent's refusal to accept a reasonable offer or compromise and his conduct during the trial. Given that the respondent's denial of the allegations until presented with his criminal history, along with his conduct, increased the costs for Ms Arias, the court found that there were circumstances justifying a costs order. The court noted that while it is settled practice to order costs on a party and party basis unless there are exceptional circumstances, the respondent's conduct warranted a detailed assessment of the costs incurred.

After carefully considering the evidence and submissions, the court concluded that the circumstances did justify a costs order. The court awarded costs in a fixed amount calculated in accordance with the Scale, totaling $34,015 for the property proceedings and $3,142 for the application filed on 9 May 2024. The court ordered that Mr Grasso pay these amounts within 14 days of the order or upon settlement of the sale of the real property, whichever occurred later. The application for costs and the response was otherwise dismissed.

Orders

Orders of the court

NCC 4198 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS ARIAS

Applicant

AND:

MR GRASSO

Respondent

ORDER MADE BY:

JUDGE CARTY

DATE OF ORDER:

18 DECEMBER 2024

THE COURT ORDERS THAT:

1. The respondent will pay the applicant’s costs in the property proceedings on a party and party basis fixed in the sum of $34,015.

2. The respondent will pay the applicant’s costs in the Application in a Proceeding filed on 9 May 2024 fixed in the sum of $3,142.

3. Payment by the respondent of the amounts due to the applicant pursuant to Order 1 and Order 2 hereto will be made within 14 days of the date of this order, or upon settlement of the sale of the real property situate at G Street, Suburb H in the State of New South Wales, whichever date occurs later.

4. The application for costs and the response is otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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