Chimin and Fiato (No. 2) - [2019] FamCA 183

FAMILY COURT OF AUSTRALIA

CHIMIN & FIATO (NO. 2)

[2019] FamCA 183

FAMILY LAW – COSTS – Application for costs certificate pursuant to s 10(3) Federal Proceedings Costs Act 1981 (Cth) – Certificate granted.

Federal Proceedings (Costs) Act 1981 (Cth)

Coulson v Gosford Meats Pty Ltd (1985) 7 FCR 106
Furnari v Furnari [1998] FamCA 171
In the Marriage of Redshaw (1989) FLC 92-053

In the Marriage of Tyson (No. 2) (1993) FLC 92-401

Minchin v McDonald [2012] FMCAfam 1328

Official Trustee in Bankruptcy, in the matter of Forrest (Bankrupt) v Forrest [2000] FCA 907

Perpetual Trustee Company (Canberra) Limited and Ors v Robert Lewis as Delegate for the Commissioner for the Australian Capital Territory Revenue [1996] ACTSC 19

Re Morris; Morris v Maroudas (1986) 66 ALR 699

Re Palmdale Insurance Ltd (1994) 122 ACTR 33
Ward v Schembri (2005) FLC 93-229

APPLICANT:

Mr Chimin

RESPONDENT:

Ms Fiato

INDEPENDENT CHILDREN’S LAWYER:

Faraday Law

FILE NUMBER:

BRC

10018

2015

DATE DELIVERED:

29 March 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

27 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Bertone

SOLICITOR FOR THE APPLICANT:

Indigo Law

COUNSEL FOR THE RESPONDENT:	Ms Martinovic
SOLICITOR FOR THE RESPONDENT:	Keyworth Harris & Lowe Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Faraday Law

Orders

IT IS ORDERED THAT

The Applicant is granted a costs certificate pursuant to s 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under this Act to the Applicant in respect of such part as the Attorney-General considers appropriate of any costs incurred by the Applicant in relation to the hearing of the matter on 19 February 2019 and 20 February 2019.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chimin & Fiato has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10018 of 2015

Mr Chimin

Applicant

And

Ms Fiato

Respondent

And

The Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 27 February 2019, Counsel for the Applicant made an oral application seeking that the Applicant be granted a costs certificate pursuant to s 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth)(“the Act”) in respect of the hearing on 19 and 20 February 2019.
The circumstances relevant to the consideration of this application may be briefly stated thus:
a)the substantive proceedings are for parenting orders in relation to the only child of…

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.

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Details

Case: [2019] FamCA 183
Decision Date: 29 March 2019

CaseChat Overview and Summary

In *Chimin and Fiato (No. 2)*, Hogan J of the Federal Court of Australia considered an application for a costs certificate. The applicant sought a certificate under section 10(3) of the *Federal Proceedings (Costs) Act 1981* (Cth), which would allow for the Attorney-General to authorise payment of some of the applicant's costs incurred in relation to hearings on 19 and 20 February 2019.

The central legal issue before the Court was whether the applicant was entitled to a costs certificate under the Act. This required the Court to determine if it was appropriate for the Attorney-General to authorise a payment towards the applicant's costs for the specified hearings.

Hogan J granted the costs certificate, finding it appropriate for the Attorney-General to consider authorising a payment to the applicant. The order specified that the payment would be in respect of such part of the costs incurred by the applicant for the hearings on 19 and 20 February 2019 as the Attorney-General considered appropriate.

Orders

Orders of the court

IT IS ORDERED THAT

The Applicant is granted a costs certificate pursuant to s 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under this Act to the Applicant in respect of such part as the Attorney-General considers appropriate of any costs incurred by the Applicant in relation to the hearing of the matter on 19 February 2019 and 20 February 2019.

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

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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