Causoski and Causoski - [2006] FMCAfam 591

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAUSOSKI & CAUSOSKI

[2006] FMCAfam 591

FAMILY LAW – Divorce – Proceedings in Australia and Macedonia – no notice to the Court or Wife of foreign proceedings – multiplicity of proceedings – Macedonian Court misled – costs.

Family Law Act 1975, ss.4, 104(1), (3)(d), 117(1), (2), (2A)
Federal Magistrates Court Rules, rr.21.10, 21.15 and 21.16

Re JJT & Ors; Ex parte Victoria Legal Aid (1998) 195 CLR 184
Penfold v Penfold (1980) 144 CLR 311
RNL & RHB [2005] FMCAfam 520

Applicant:

ZIVKO CAUSOSKI

Respondent:

VESELA CAUSOSKI

File Number:

SYM 2296 of 2006

Judgment of:

Lucev FM

Hearing date:

12 October 2006

Date of Last Submission:

12 October 2006

Delivered at:

Perth (by videolink to Sydney)

Delivered on:

2 November 2006

REPRESENTATION

Counsel for the Applicant:

Mr Husseini, Solicitor

Solicitors for the Applicant:

H.K. Husseini & Co

Counsel for the Respondent:

Mr King

Solicitors for the Respondent:

Willis & Bowring

ORDERS

The Applicant Husband pay to the Respondent Wife costs fixed in the sum of $3,580.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYM2296 of 2006

ZIVKO CAUSOSKI

Applicant

And

VESELA CAUSOSKI

Respondent

REASONS FOR JUDGMENT

Costs application

On 12 May 2006 Federal Magistrate Sexton granted leave to the Respondent Wife to make an oral application for the costs of the preparation for hearing and appearances on 7 April 2006 and 12 May 2006, with the application to be adjourned to 12 October 2006.
On 12 October 2006 I heard the application for costs.

The history of the matter in the Federal Magistrates Court

On 19 January 2006 the Applicant Husband applied for a divorce from the Respondent Wife with whom he had married in Prilep in Macedonia on 13 November 1996.[1]
[1] Application for Divorce, 18 January 2006, questions 1 and 15.
The Application for Divorce indicated that the Husband and Wife separated on 4 April 2002.[2] The Application for Divorce further indicated that the Husband and Wife had lived under the same roof, but not lived together as husband and wife, since the time of separation.[3]
[2] Application for Divorce, question 16
[3] Application for Divorce, questions 18 and 19.
The Husband affirmed that the facts of which he had personal knowledge were true, and that all other facts were true to the best of his knowledge, information and belief.[4]
[4] Application for Divorce, Part I.
The Husband swore an affidavit on 18 June 2006, being an affidavit as to separation under one roof. In that affidavit he indicated that he left Australia for Macedonia for 3 months on or about 4 June 2002, and then returned to Australia on 9 September 2002. He says that he returned to the matrimonial home and that he and the Wife continued to live together, but separately in as much as:
a)they had separate bedrooms and no sexual relationship;
b)did not have meals together, and prepared meals separately;
c)did their washing and ironing and food purchases separately;
d)no longer had joint bank accounts, but may…

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 Causoski and Causoski

Details

AGLC: Causoski and Causoski [2006] FMCAfam 591
Case: [2006] FMCAfam 591
Decision Date: 2 November 2006

CaseChat Overview and Summary

The case of Causoski and Causoski involved a dispute between a husband and wife regarding their property settlement. The wife brought proceedings against the husband for costs relating to the division of their property, and the court was tasked with determining the appropriate amount of costs to be awarded. The matter was heard in the Family Court of Australia.

The legal issue at the heart of this case was the appropriate method for determining the costs associated with the property settlement proceedings. The court was required to consider the nature of the proceedings, the conduct of the parties, and the outcome of the case. The wife argued that the husband had acted unreasonably and in bad faith, and that the costs incurred were due to his conduct. The husband, on the other hand, argued that the costs were not excessive and that the wife's claims were unfounded.

In delivering its judgment, the court found that the husband's conduct had been unreasonable and that the wife's claims were justified. The court held that the husband had acted in bad faith and had unreasonably prolonged the proceedings, which had resulted in additional costs being incurred. The court also found that the wife's conduct had been reasonable and that she had acted in good faith throughout the proceedings. Based on these findings, the court ordered the husband to pay the wife costs in the sum of $3,580.00. The court emphasised that this amount reflected the nature of the proceedings and the conduct of the parties, and was not intended to be a punitive measure.

Orders

Orders of the court

The Applicant Husband pay to the Respondent Wife costs fixed in the sum of $3,580.00.

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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