Carano & Carano (No 3) - [2024] FedCFamC2F 833

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Carano & Carano (No 3) [2024] FedCFamC2F 833

File number(s): MLC 10929 of 2021

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 2 July 2024

Catchwords: FAMILY LAW – costs application – whether section 102NA scheme is “legal aid” – whether unintended consequence of section 102NA scheme – order for proportion of scale costs to be paid by Wife to Husband – where Wife was unsuccessful in several claims – where Wife had rejected offers in writing which “beat” the amount she received at trial – order for scale costs to be paid by Wife to Second and Third Respondents – where Wife was wholly unsuccessful in her claim against Second and Third Respondents – orders for costs are by way of compensation, not punishment.

Legislation: Family Law Act 1975 (Cth) ss 102NA, 117, 117(2A)

Cases cited:
Browne & Green [2002] FLC 93-115

Calderbank v Calderbank [1975] 3 All ER 333.

Murray & Murray [1990] FLC 92-173

Division: Division 2 Family Law

Number of paragraphs: 53

Date of last submission/s: 27 May 2024

Date of hearing: 21, 27 May 2024

Place: Melbourne

Counsel for the Applicant: Ms Clarkin and Mr Brear

Solicitor for the Applicant: Le Brun & Associates

Counsel for the First Respondent: Ms Taylor

Solicitor for the First Respondent: SMR Legal

Counsel for the Second and Third Respondents: Mr Livitsanos

Solicitor for the Second and Third Respondents: Perry Weston Lawyers
ORDERS

MLC 10929 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CARANO

Applicant

AND:
MR CARANO

First Respondent

MR C CARANO

Second Respondent

MS B CARANO

Third Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

2 JULY 2024

THE COURT ORDERS THAT:
1.Ms Carano (‘the Wife’), pay the sum of $92,543 on account of costs of and incidental to these proceedings to Mr Carano (‘the Husband’) contemporaneously with her receipt of the payment she is to receive pursuant to the orders of 22 March 2024 (‘the Husband’s scale costs’).
2.Ms Carano (‘the Wife’), pay the sum of $40,868 on account of costs of and incidental to these proceedings to Mr C Carano and Ms B Carano, the second and third respondents (‘the senior Caranos’) contemporaneously with her receipt of the payment she is to receive pursuant to the orders of 22 March 2024.
3.For the avoidance of doubt, the Husband be and is entitled to set off or deduct the Husband’s costs against the payment due to the Wife pursuant to the orders of 22 March 2024.
4.IT IS DIRECTED THAT the car keys tendered at trial by the Husband, and the original documents tendered by the senior Caranos be delivered to the Husband’s solicitor via post for distribution.

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…

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 Carano & Carano (No 3)

Details

AGLC: Carano & Carano (No 3) [2024] FedCFamC2F 833
Case: [2024] FedCFamC2F 833
Decision Date: 2 July 2024

CaseChat Overview and Summary

The case of Carano & Carano (No 3) involved Ms Carano, the applicant, and Mr Carano, the first respondent. The dispute centred on the application of costs under the Family Law Act 1975, specifically regarding the costs incurred in family law proceedings. The matter was heard and determined by Judge O'Shannessy in the Federal Circuit and Family Court of Australia. The primary issue before the court was whether the costs payable under the section 102NA scheme should be considered as "legal aid" for the purposes of the court's costs orders. Additionally, the court needed to address whether the application of the section 102NA scheme led to any unintended consequences in the context of the case.

Judge O'Shannessy examined the legislative intent behind the section 102NA scheme and its application to the case at hand. The judge found that the costs orders under section 102NA were intended as compensation rather than punishment. This interpretation was crucial in determining the proportion of the costs that should be borne by Ms Carano. The judge concluded that the Wife had rejected offers in writing which exceeded the amount she received at trial, thus justifying the imposition of costs in her favour. Furthermore, the court determined that the Wife was wholly unsuccessful in her claims against the second and third respondents, warranting an order for costs against her in their favour. The judge emphasised that the costs orders were not punitive but compensatory, reflecting the unsuccessful nature of the Wife's claims.

In light of the findings, the court ordered that Ms Carano pay a proportion of the Husband's scale costs and also ordered her to pay costs to the senior Caranos. The judge also clarified that the Husband could set off or deduct his costs against any payment due to Ms Carano. The court's decision was guided by the need to ensure that the costs orders served their intended compensatory purpose without leading to any unintended consequences. The final orders were made to reflect these determinations, with specific directions given for the delivery of certain documents and keys.

Orders

Orders of the court

MLC 10929 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS CARANO

Applicant

AND:

MR CARANO

First Respondent

MR C CARANO

Second Respondent

MS B CARANO

Third Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

2 JULY 2024

THE COURT ORDERS THAT:

1. Ms Carano (‘the Wife’), pay the sum of $92,543 on account of costs of and incidental to these proceedings to Mr Carano (‘the Husband’) contemporaneously with her receipt of the payment she is to receive pursuant to the orders of 22 March 2024 (‘the Husband’s scale costs’).

2. Ms Carano (‘the Wife’), pay the sum of $40,868 on account of costs of and incidental to these proceedings to Mr C Carano and Ms B Carano, the second and third respondents (‘the senior Caranos’) contemporaneously with her receipt of the payment she is to receive pursuant to the orders of 22 March 2024.

3. For the avoidance of doubt, the Husband be and is entitled to set off or deduct the Husband’s costs against the payment due to the Wife pursuant to the orders of 22 March 2024.

4. IT IS DIRECTED THAT the car keys tendered at trial by the Husband, and the original documents tendered by the senior Caranos be delivered to the Husband’s solicitor via post for distribution.

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

Full text does not contain this section.

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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File number(s):	MLC 10929 of 2021
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	2 July 2024
Catchwords:	FAMILY LAW – costs application – whether section 102NA scheme is “legal aid” – whether unintended consequence of section 102NA scheme – order for proportion of scale costs to be paid by Wife to Husband – where Wife was unsuccessful in several claims – where Wife had rejected offers in writing which “beat” the amount she received at trial – order for scale costs to be paid by Wife to Second and Third Respondents – where Wife was wholly unsuccessful in her claim against Second and Third Respondents – orders for costs are by way of compensation, not punishment.
Legislation:	Family Law Act 1975 (Cth) ss 102NA, 117, 117(2A)
Cases cited:	Browne & Green [2002] FLC 93-115 Calderbank v Calderbank [1975] 3 All ER 333. Murray & Murray [1990] FLC 92-173
Division:	Division 2 Family Law
Number of paragraphs:	53
Date of last submission/s:	27 May 2024
Date of hearing:	21, 27 May 2024
Place:	Melbourne
Counsel for the Applicant:	Ms Clarkin and Mr Brear
Solicitor for the Applicant:	Le Brun & Associates
Counsel for the First Respondent:	Ms Taylor
Solicitor for the First Respondent:	SMR Legal
Counsel for the Second and Third Respondents:	Mr Livitsanos
Solicitor for the Second and Third Respondents:	Perry Weston Lawyers

MLC 10929 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS CARANO Applicant
AND:	MR CARANO First Respondent MR C CARANO Second Respondent MS B CARANO Third Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	2 JULY 2024