Baldoni & Baldoni (No 3) - [2023] FedCFamC1F 550

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Baldoni & Baldoni (No 3) [2023] FedCFamC1F 550

File number(s): SYC 1234 of 2019

Judgment of: KARI J

Date of judgment: 15 June 2023

Catchwords:
FAMILY LAW – STAY APPLICATION – Ex Tempore Reasons – where the husband is self-represented – where the husband has filed an appeal of the final orders – where the husband now makes an application for a stay of all of the final orders pending determination of the appeal – application dismissed.

FAMILY LAW – COSTS APPLICATIONS – Ex Tempore Reasons – where the wife and intervener make separate costs applications against the husband – applications granted – orders for fixed costs made against the husband.

Legislation: Family Law Act 1975 (Cth) s 117

Cases cited: Aldridge & Keaton [2009] FamCAFC 106
Trahn & Long (No 2) [2008] FamCAFC 194

Division: Division 1 First Instance

Number of paragraphs: 48

Date of hearing: 15 June 2023

Place: Adelaide

Counsel for the Applicant: Mr Todd

Solicitor for the Applicant: Edwards Moloney Family Law

The Respondent: Self-represented

Solicitor for the Intervener: Somerset Ryckmans
ORDERS

SYC 1234 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS BALDONI

Applicant

AND:
MR BALDONI

Respondent

MR VERTUE

Intervener

order made by:

KARI J

DATE OF ORDER:

15 JUNE 2023

THE COURT ORDERS THAT:
1.That the Application in a Proceeding filed by the Husband on 30 May 2023 be dismissed.
2.That the Response to the Application in a Proceeding filed by the Wife on 13 June 2023 together with the Response to the Application in a Proceeding filed by the Third Party on 13 June 2023 be dismissed save and except as to the question of costs.
3.That no later than 4.00pm on 28 July 2023 the Husband do pay the following:
(a)The Wife’s costs fixed in the amount of $6,000.00 to the Edwards Moloney Family Law Trust Account Lawyers;
(b)The third party’s costs fixed in the amount of $3,000.00 to the Somerset Ryckman’s Trust Account.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Ex tempore reasons settled from transcript)
JUSTICE KARI
INTRODUCTION

This matter comes before me today in the context of final orders made in financial proceedings between…

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 Baldoni & Baldoni (No 3)

Details

AGLC: Baldoni & Baldoni (No 3) [2023] FedCFamC1F 550
Case: [2023] FedCFamC1F 550
Decision Date

CaseChat Overview and Summary

Baldoni & Baldoni (No 3) involved a dispute between the husband and wife regarding the final orders made on 5 May 2023. The husband sought to stay these orders and proposed an order concerning service, which he did not argue before the court. The court considered the application and dismissed it, noting the husband's failure to press the application and make relevant submissions.

The primary legal issue was whether the court should grant a stay of the final orders made in the proceedings. The court also had to consider the proposed service order and the husband's failure to argue it before the court. Additionally, the court needed to address the costs applications made by the wife and the liquidator. The husband admitted that the costs sought were reasonable but did not engage with the relevant factors for determining the costs.

In its reasoning, the court noted that no submissions were made regarding the timing of the appeal, and the husband's stay application was not pressed. The court dismissed the application for a stay and the proposed service order. Regarding the costs, the court accepted that the husband had been wholly unsuccessful and had not engaged with the principles for determining the stay application. It found that the husband's conduct weighed in favour of making a costs order. The court accepted the husband's admission that the costs sought were reasonable and ordered costs accordingly.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I have not heard any submissions as to when it is likely that the appeal is to be heard, and that is not something that I bring to account at this juncture. CONCLUSION In all of the circumstances, and for the reasons that I have given, I do not consider it appropriate to grant a stay of the final orders that were made in these proceedings on 5 May 2023. I am conscious that the Application filed by the husband on 30 May 2023 had, in addition to the orders for a stay, a proposed order with respect to service. I have not heard any submissions by the husband in support of that application, and I accordingly propose to equally dismiss that application on the basis that it has not been pressed before me today. COST APPLICATIONS Having determined all of the issues raised by the Application in a Proceeding filed by the husband on 30 May 2023, I now have before me costs applications made by each the wife and the third party. The wife seeks costs fixed in the amount of $6,000, identifying that her actual costs incurred are a sum of $11,000. The liquidator equally seeks that the Court make a costs order fixed in the amount of $3,000, understanding the submission that the actual costs incurred at the liquidator's end is a sum of $5,500. I am mindful of the provisions of section 117 of the Act and, in particular, the provisions of section 117(2A). I have also drawn section 117(2A) to the husband's attention. However he has chosen to decline to make any submissions in relation to the relevant factors identified in section 117(2A). The husband has however made what I consider to be a significant admission that is relevant to my consideration of the costs applications that have been made, namely, that he considers the quantum of costs now sought by each the wife and the liquidator to be “reasonable”. Turning to the relevant factors in section 117(2A), a significant factor that is exercising my mind is that the husband has been wholly unsuccessful in his application for a stay before me. While I am mindful that no one factor in section 117(2A) is necessarily determinative of any costs application, the fact that the husband was wholly unsuccessful is a significant factor, in my view, that weighs in favour of the making of a costs order. In addition, I consider that the conduct of the husband to the proceedings before the Court today are equally significant and weigh in favour of the making of a costs application, as has been sought. To that end, I accept and I agree with the submissions made on behalf of the wife that the husband has not engaged with the relevant principles for the determination of the stay application, despite having been given the opportunity to do so by the granting of an adjournment yesterday to today to enable him to engage with those issues. I have commented in my reasons as to the scantness of the written submissions that were filed and the husband's determination during the course of the hearing not to make any further oral submissions in support of his application.

Ratio Decidendi

Legal Principle Established

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File number(s):	SYC 1234 of 2019
Judgment of:	KARI J
Date of judgment:	15 June 2023
Catchwords:	FAMILY LAW – STAY APPLICATION – Ex Tempore Reasons – where the husband is self-represented – where the husband has filed an appeal of the final orders – where the husband now makes an application for a stay of all of the final orders pending determination of the appeal – application dismissed. FAMILY LAW – COSTS APPLICATIONS – Ex Tempore Reasons – where the wife and intervener make separate costs applications against the husband – applications granted – orders for fixed costs made against the husband.
Legislation:	Family Law Act 1975 (Cth) s 117
Cases cited:	Aldridge & Keaton [2009] FamCAFC 106 Trahn & Long (No 2) [2008] FamCAFC 194
Division:	Division 1 First Instance
Number of paragraphs:	48
Date of hearing:	15 June 2023
Place:	Adelaide
Counsel for the Applicant:	Mr Todd
Solicitor for the Applicant:	Edwards Moloney Family Law
The Respondent:	Self-represented
Solicitor for the Intervener:	Somerset Ryckmans

SYC 1234 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS BALDONI Applicant
AND:	MR BALDONI Respondent
MR VERTUE Intervener

order made by:	KARI J
DATE OF ORDER:	15 JUNE 2023