Chiodo and Shaw (No 2) - [2011] FamCA 1061

FAMILY COURT OF AUSTRALIA

CHIODO & SHAW (NO 2)

[2011] FamCA 1061

FAMILY LAW – COSTS

Family Law Act (1975) (Cth)

Chiodo & Shaw [2011] FamCA 639
Colgate-Palmolive Company and Anor v Cussons Pty Ltd (1993) 46 FCR 225
Fraser v Moedt (unreported, 30 October 1997)
Gallo v Dawson (1990) 93 ALR 479
Kohan and Kohan (1993) FLC 92-340
Munday & Bowman (1997) FLC 92-784
Nemeth & Nemeth (1987) FLC 91-844
Oriolo and Oriolo (1985) FLC 91-653
Yunghanns & Yunghanns (2000) FLC 93-029

APPLICANT:

Mr Chiodo

RESPONDENT:

Ms Shaw

FILE NUMBER:

PAF

3138

1987

DATE DELIVERED:

16 December 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

By way of written submissions

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

No submissions filed

COUNSEL FOR THE RESPONDENT:

Mr Jackson

SOLICITOR FOR THE RESPONDENT:

Helliars Solicitors

Orders

That Mr Chiodo pay eighty per cent (80 per cent) of the costs incurred by Ms Shaw in relation to proceedings commenced by him in this Court on 3 August 2005.
That the quantum of costs shall be assessed and calculated on an indemnity basis.
Interest on the amount assessed is payable at the applicable rate set out in the Family Law Rules 2004 commencing from 28 days after the costs have been assessed.

IT IS NOTED that publication of this judgment under the pseudonym Chiodo & Shaw (No 2) is approved pursuant to the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAF 3138 of 1987

Mr Chiodo

Applicant

And

Ms Shaw

Respondent

REASONS FOR JUDGMENT

Before the court is an application by Ms Shaw that her former husband, Mr Chiodo, pays legal costs which she incurred as the respondent in proceedings he commenced in August 2005. The substantive proceedings involved a determination of whether to discharge or enforce child maintenance, spousal maintenance and property settlement orders made pursuant to the Family Law Act 1975 (Cth) (“the Act”) in 1990.
On 1 August 2011, I dismissed Mr Chiodo’s application and made orders in favour of Ms Shaw which enforced the 1990 child maintenance, spousal maintenance and property settlement orders. Mr Chiodo was ordered to pay $66,897.13 by way of enforcement of the 1990 child maintenance order, $102,771.43 by way of enforcement of the 1990 spousal maintenance order and $87,810.47 by way of enforcement of the 1990 property settlement order plus interest.

Background Facts

The background facts of this case are detailed in paragraphs 27 to 62 in the substantive judgment. Accordingly only the salient facts will be repeated here.
The parties married in 1972. Their children were born in 1972, 1975, 1978, 1980 and 1983 and thus are all over the age of 18.
In March 1987, the parties separated but continued to live in the same house. Physical separation occurred later that year.
On 15 August 1990, after a defended hearing, final child and spousal maintenance and property settlement orders were made. Amongst other orders made on…

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 Chiodo and Shaw (No 2)

Details

AGLC: Chiodo and Shaw (No 2) [2011] FamCA 1061
Case: [2011] FamCA 1061
Decision Date: 16 December 2011

CaseChat Overview and Summary

This matter concerned an application for costs by Ms Shaw against Mr Chiodo following proceedings commenced by Mr Chiodo in the Family Court of Australia. The dispute related to the division of property.

The primary legal issue before the Court was the basis upon which costs should be ordered, specifically whether they should be assessed on a standard or indemnity basis, and the proportion of those costs Mr Chiodo should bear.

Ryan J determined that Mr Chiodo should pay 80 per cent of Ms Shaw's costs. His Honour ordered that these costs be assessed on an indemnity basis, reflecting the Court's view that Mr Chiodo's conduct warranted a departure from the usual order for costs on a standard basis. Interest was also ordered to be paid on the assessed costs.

Orders

Orders of the court

That Mr Chiodo pay eighty per cent (80 per cent) of the costs incurred by Ms Shaw in relation to proceedings commenced by him in this Court on 3 August 2005.

That the quantum of costs shall be assessed and calculated on an indemnity basis.

Interest on the amount assessed is payable at the applicable rate set out in the Family Law Rules 2004 commencing from 28 days after the costs have been assessed.

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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