FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Barbieri & Barbieri (No 2) [2025] FedCFamC1A 89
Appeal from: Barbieri & Barbieri (No 2) [2024] FedCFamC1F 686 Appeal number: NAA 322 of 2024 File number: SYC 6804 of 2020 Judgment of: MCCLELLAND DCJ, WILSON & JARRETT JJ Date of judgment: 10 June 2025 Catchwords: FAMILY LAW – APPEAL – COSTS – Application for costs on indemnity basis or otherwise at scale – Where the appellant was wholly unsuccessful – Where the appeal was not hopeless, without reasonable cause, frivolous or vexatious – Respondent awarded costs at scale. Legislation: Family Law Act 1975 (Cth) ss 79A, 117 Cases cited: Barbieri & Barbieri [2025] FedCFamC1A 51
Barbieri & Barbieri (No 2) [2024] FedCFamC1F 686
Browne v Green (2002) FLC 93-115; [2002] FamCA 791
Kelly and Kelly (No 2)(1981) 7 FamLR 762; [1981] FamCA 78
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Trask & Westlake (Costs) [2015] FamCAFC 214
Number of paragraphs: 16 Date of last submission: 5 May 2025 Date of hearing: Determined on the papers Place: In Chambers Solicitor for the Appellant: Russell Kennedy Counsel for the Respondent: Mr Sirtes SC Solicitor for the Respondent: Edwards Maloney Family Law ORDERS
NAA 322 of 2024
SYC 6804 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BARBIERI
Appellant
AND: MS BARBIERI
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, WILSON & JARRETT JJ
DATE OF ORDER:
10 JUNE 2025
THE COURT ORDERS THAT:
1.The appellant pay the respondent’s costs of and incidental to Appeal NAA 322 of 2024 fixed in the sum of $63,777.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Barbieri & Barbieri has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, WILSON & JARRETT JJ:
By orders made on 31 March 2025, we dismissed the appellant’s appeal against certain property adjustment orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 1 November 2024. We made directions about the filing and service of submissions, should any party be moved to seek an order as to the costs of the appeal.
The respondent…
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CaseChat Overview and Summary
The court was tasked with determining whether the appeal was hopeless, without reasonable cause, frivolous or vexatious, as these factors influence the discretion of the court in awarding costs. The court found that the appeal was neither hopeless nor without reasonable cause, and it was not frivolous or vexatious. Consequently, the court awarded costs to the respondent at scale rather than on an indemnity basis.
The court's decision was based on the appellant's lack of success in the appeal and the reasonable nature of the appeal's grounds. The court held that while the appeal was not entirely without merit, the appellant's overall failure justified the imposition of costs at scale. This was a proportionate outcome considering the appellant's unsuccessful appeal and the absence of egregious conduct warranting indemnity costs.
The court ordered that Mr Barbieri pay Ms Barbieri's costs of and incidental to the appeal NAA 322 of 2024, fixed in the sum of $63,777. This order reflects the court's balancing of the need to discourage frivolous appeals while also recognising the reasonable basis of the appeal in this instance.
Orders
Orders of the court
NAA 322 of 2024
SYC 6804 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR BARBIERI
Appellant
AND:
MS BARBIERI
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, WILSON & JARRETT JJ
DATE OF ORDER:
10 JUNE 2025
THE COURT ORDERS THAT:
1. The appellant pay the respondent’s costs of and incidental to Appeal NAA 322 of 2024 fixed in the sum of $63,777.
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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