Cirillo & Cirillo (No. 2) - [2021] FedCFamC1A 101

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cirillo & Cirillo (No. 2) [2021] FedCFamC1A 101

Appeal from: Cirillo & Cirillo(No. 2) [2021] FamCA 398

Appeal number(s): EAA 74 of 2021

File number(s): SYC 4192 of 2020

Judgment of: AUSTIN, REES & WILSON JJ

Date of judgment: 24 December 2021

Catchwords: FAMILY LAW – APPEAL – COSTS – Written submissions on the issue of costs – Application for indemnity costs – Where the appellant was wholly unsuccessful in her application to adduce further evidence and in her application for leave to appeal – Where there was no utility in the appeal – Where the appellant refused an offer – Where the appellant did not file any submissions in opposition to an application for indemnity costs – Indemnity costs ordered in the respondent’s favour.

Legislation: Family Law Act 1975 (Cth) s 117(2A)

Cases: Colgate-Palmolive Co v CussonsPty Ltd (1993) 46 FCR 225; [1993] FCA 801
Prantage & Prantage (2013) FLC 93-544; [2013] FamCAFC 105

Number of paragraphs: 17

Date of last submission/s: 7 December 2021

Date of hearing: Heard by way of written submissions

Place: In Chambers, delivered in Newcastle

Appellant: Litigant in person (did not participate)

Counsel for the Respondent: Mr Richardson SC

Solicitor for the Respondent: Boyce Family Law & Mediation
ORDERS

EAA 74 of 2021
SYC 4192 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS CIRILLO

Appellant

AND:
MR CIRILLO

Respondent

ORDER MADE BY:

AUSTIN, REES & WILSON JJ

DATE OF ORDER:

24 DECEMBER 2021

THE COURT ORDERS THAT:
1.The wife pay the husband’s costs of the appeal in the sum of $57,346.53, with such sum to be paid within seven days of the wife’s receipt of funds payable to her pursuant to Order 3(c) made on 1 October 2021.

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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cirillo & Cirillo (No. 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, REES & WILSON JJ:

Reasons for judgment in the appeal in this matter were delivered, and leave to appeal was refused, on 2 November 2021.
Costs were reserved and the husband was ordered to file and serve any affidavit and written submissions within 14 days, the wife to file within14 days thereafter.
The husband has filed an affidavit and written submissions. The wife has not filed any material.
The husband relies upon an affidavit of his solicitor sworn on 16 November 2021 and written…

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 Cirillo & Cirillo (No. 2)

Details

AGLC: Cirillo & Cirillo (No. 2) [2021] FedCFamC1A 101
Case: [2021] FedCFamC1A 101
Decision Date: 24 December 2021

CaseChat Overview and Summary

In the case of Cirillo & Cirillo (No. 2), the appellant, Ms Cirillo, appealed against a decision of the Family Court of Australia. The appeal concerned the determination of costs and the application for indemnity costs by the respondent, Mr Cirillo. The central issue in this case was whether the appellant should be required to pay the respondent's costs of the appeal due to the unsuccessful nature of her appeal, her refusal to accept an offer, and her failure to file submissions in opposition to the application for indemnity costs.

The court was required to decide whether the appeal was wholly without merit and whether the appellant's refusal to accept an offer of settlement contributed to the costs incurred. Additionally, the court needed to assess whether the appellant's failure to file submissions in opposition to the application for indemnity costs warranted the imposition of such costs. The court found that the appeal was of no utility and that the appellant had acted unreasonably in refusing an offer and failing to file submissions. Consequently, the court ordered the appellant to pay the respondent's costs of the appeal.

The court ordered that Ms Cirillo pay the costs of the appeal in the sum of $57,346.53, to be paid within seven days of her receipt of funds payable to her pursuant to a previous order. This order underscores the importance of the conduct of parties in appeals and the potential consequences of acting unreasonably in the context of legal proceedings.

Orders

Orders of the court

EAA 74 of 2021

SYC 4192 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS CIRILLO

Appellant

AND:

MR CIRILLO

Respondent

ORDER MADE BY:

AUSTIN, REES & WILSON JJ

DATE OF ORDER:

24 DECEMBER 2021

THE COURT ORDERS THAT:

1. The wife pay the husband’s costs of the appeal in the sum of $57,346.53, with such sum to be paid within seven days of the wife’s receipt of funds payable to her pursuant to Order 3(c) made on 1 October 2021.

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).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

EAA 74 of 2021 SYC 4192 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS CIRILLO Appellant
AND:	MR CIRILLO Respondent

Appeal from:	Cirillo & Cirillo(No. 2) [2021] FamCA 398
Appeal number(s):	EAA 74 of 2021
File number(s):	SYC 4192 of 2020
Judgment of:	AUSTIN, REES & WILSON JJ
Date of judgment:	24 December 2021
Catchwords:	FAMILY LAW – APPEAL – COSTS – Written submissions on the issue of costs – Application for indemnity costs – Where the appellant was wholly unsuccessful in her application to adduce further evidence and in her application for leave to appeal – Where there was no utility in the appeal – Where the appellant refused an offer – Where the appellant did not file any submissions in opposition to an application for indemnity costs – Indemnity costs ordered in the respondent’s favour.
Legislation:	Family Law Act 1975 (Cth) s 117(2A)
Cases:	Colgate-Palmolive Co v CussonsPty Ltd (1993) 46 FCR 225; [1993] FCA 801 Prantage & Prantage (2013) FLC 93-544; [2013] FamCAFC 105
Number of paragraphs:	17
Date of last submission/s:	7 December 2021
Date of hearing:	Heard by way of written submissions
Place:	In Chambers, delivered in Newcastle
Appellant:	Litigant in person (did not participate)
Counsel for the Respondent:	Mr Richardson SC
Solicitor for the Respondent:	Boyce Family Law & Mediation

ORDER MADE BY:	AUSTIN, REES & WILSON JJ
DATE OF ORDER:	24 DECEMBER 2021