Fabian & Azarola (No 2)

Case [2024] FedCFamC1F 496

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Fabian & Azarola (No 2) [2024] FedCFamC1F 496

File number(s): SYC 5734 of 2023
Judgment of: ALTOBELLI J
Date of judgment: 25 July 2024
Catchwords: FAMILY LAW – COSTS – Where costs were sought following a Hague Convention application – Where costs were sought incidental to the costs application itself – Where it was contended that the respondent was wholly unsuccessful – Where the respondent was not found to have been wholly unsuccessful – Where the applicant’s costs application is dismissed.  
Legislation:

Family Law Act 1975 (Cth) ss 111B, 117

Family Law (Child Abduction Convention) Regulations 1986 (Cth) cl 16(3)(b)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.13

Cases cited:

Anison & Anison (2019) FLC 93-908; [2019] FamCAFC 108

Bhatt & Acharya (Costs) [2017] FamCAFC 71

Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68

Fabian & Azarola [2023] FedCFamC1F 949

In the Marriage of I & I (No. 2) (1995) FLC 92-625; [1995] FamCA 80

In the Marriage of S R Higginbotham and G M Robinson (1991) FLC 92-209; [1991] FamCA 5

Lenova & Lenova (Costs) [2011] FamCAFC 141; [2011] FamCAFC 141

Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157

Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248

PBF (as child representative for AF (Legal Aid Commission of Tasmania)) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158

Peake v Benedict (Costs) (2014) 53 Fam LR 476; [2014] FCCA 2723

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Division: Division 1 First Instance
Number of paragraphs: 35
Date of last submission/s: 20 May 2024
Date of hearing: In Chambers
Place: Sydney
Solicitor for the Applicant: Bartier Perry
Solicitor for the Respondent: Walter & Elliott Family Lawyers Pty Ltd

ORDERS

SYC 5734 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS FABIAN

Applicant
AND:

MR AZAROLA

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

25 JULY 2024

THE COURT ORDERS THAT:

1.The Applicant’s Application in a Proceeding filed 7 December 2023 is dismissed.

2.Each party is to pay their own costs of the proceedings, including the costs of the present costs application.

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.

IT IS NOTED that publication of…

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AGLC
Fabian & Azarola (No 2) [2024] FedCFamC1F 496
Case
[2024] FedCFamC1F 496
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the matter of Fabian & Azarola (No 2) arose following a Hague Convention application filed by the father, Mr Azarola, seeking the return of his daughter, X, to Country W. The mother, Ms Fabian, opposed the application and sought that the children remain in Australia. Justice Rees dismissed the Hague application, finding that X would suffer grave risk of further psychological harm if returned to Country W. Subsequently, the mother applied for costs in relation to both the Hague application and the costs application itself. Mr Azarola opposed the costs application, arguing that neither party was wholly unsuccessful and both faced significant economic difficulties.

The central legal issue before the Court was whether an order for costs should be made in favour of either party. The Court considered the well-established principles governing costs in family law proceedings, including the circumstances under which a party may be entitled to an order for costs. The Court noted that neither party was wholly unsuccessful and both faced significant economic difficulties. It also highlighted that the costs application itself was not a wholly unsuccessful endeavour for either party, as both had succeeded in part.

Upholding the status quo with respect to costs, the Court concluded that neither party was wholly unsuccessful and both faced significant economic difficulties. The combined circumstances were insufficient to displace the starting position that each party would bear their own costs. Consequently, the Court dismissed the mother's costs application and ordered that each party bear their own costs relating to the Hague application and the costs application.

Each party is to pay their own costs of the proceedings, including the costs of the present costs application. This order reflects the Court's finding that neither party was wholly unsuccessful and both faced significant economic difficulties, leading to the conclusion that the status quo with respect to costs should be maintained.

Orders

Orders of the court

SYC 5734 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS FABIAN

Applicant

AND:

MR AZAROLA

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

25 JULY 2024

THE COURT ORDERS THAT:

1. The Applicant’s Application in a Proceeding filed 7 December 2023 is dismissed.

2. Each party is to pay their own costs of the proceedings, including the costs of the present costs application.

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

The father opposes a costs order being made in respect of both the Hague application and the costs application. The precise orders sought are as follows:1.That the Application in a Proceeding filed by the mother on 7 December 2023 be dismissed.2. That there be no order as to costs. BACKGROUND The mother and the father are both Australian citizens who met and married in Australia in 2011. Following this, the parties moved to the United Kingdom and had two children, X born 2011 and Y born 2013 (“the children”). In early 2015 the parties moved to Country W where they lived together until late 2022. In late 2022 Y suffered a medical condition causing him to remain in hospital. The mother and Y returned to Australia in late 2022 for Y to undergo surgery at F Hospital. From that point onward the mother has resided in Australia and the father has resided in Country W. During the period between March and April 2023 the parties agree that their relationship had ended. On 17 August 2023 the father filed the Hague application seeking that X be returned to him in Country W pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the regulations”) and s 111B of the Family Law Act 1975 (Cth) (“the Act”). The father did not seek to return Y to Country W, only X. The mother opposed this application and sought that the children live with her in Australia as well as interim orders for sole parental responsibility, that the children spend time with the father as agreed, that the father be restrained from removing X from Australia and that a single expert report be prepared in relation to matters relevant to the parenting dispute. Justice Rees dismissed the Hague application on 8 November 2023 on the ground that X would suffer grave risk of further psychological harm (Fabian & Azarola [2023] FedCFamC1F 949 at [173]–[176] (“Fabian & Azarola”)). The costs of the proceedings before Rees J, and those of and incidental to the costs application, are the subject of these reasons for judgment.THE PRESENT APPLICATION On 1 February 2024 I made orders for the costs application to proceed by way of written submissions and to be determined in chambers. In support of her case the mother relies upon the following material:(a)Application in a Proceeding filed 7 December 2023;(b)Her affidavit filed 3 May 2024; (c)Financial Statement filed 3 May 2024; and(d)Written submissions filed 3 May 2024. In support of his case, the father relies upon the following material:(a)Response to Application in a Proceeding filed 20 May 2024;(b)His affidavit filed 20 May 2024;(c)Financial Statement filed 26 April 2024; (d)Costs Notice filed 3 May 2024;(e)Orders of Altobelli J made 1 February 2024;(f)The reasons for judgment by Rees J in Fabian & Azarola [2023] FedCFamC1F 949; and(g)Written submissions filed 20 May 2024.LEGAL PRINCIPLES The law relating to costs in family law proceedings is well settled and is set out in detail in the Full Court decision of Parke & The Estate of the Late A Parke (2016) FLC 93-748.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Neither of these points hold sufficient weight to deter the Court from upholding the status quo with respect to costs.CONCLUSION For these reasons, I am not satisfied that it is in the interests of justice for an order for costs to be made in favour of either party. Neither party was wholly unsuccessful and both parties face significant economic difficulties. On balance, the combined circumstances above are insufficient to displace the starting position that each party will bear their own costs in proceedings as set out under s 117(1) of the Act. Each party will bear their own costs relating to the Hague application and the costs application.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.