FABINA & MANALO (No.2) - [2020] FCCA 3322

FEDERAL CIRCUIT COURT OF AUSTRALIA

FABINA & MANALO (No.2)

[2020] FCCA 3322

Catchwords:
FAMILY LAW – Costs – costs of objection to subpoena hearing.

Legislation:

Evidence Act 1995 (Cth), s.131

Family Law Act 1975 (Cth), ss.117

Family Law Rules 2004 (Cth), r.15.29; sch 3

Federal Circuit Court Rules 2001 (Cth), rr.1.05, 21.02, 21.03, 21.10, 21.11,

21.16; sch.1

Cases cited:

Penfold v Penfold (‘Penfold’) (1980) 144 CLR 311

Rajski v Scitech Corporation Proprietary Limited (Unreported, New South

Wales Court of Appeal, Samuels JA, 16 June 1986)

Latoudis v Casey (1990) 170 CLR 534

McDonald & McDonald [1994] FamCA 110

Colan Products Pty Ltd v Luxon Pty Ltd (No 2) [2002] FMC 90.

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) &

TRF & LKL (2005) 33 Fam LR 123

Batey-Elton & Elton (Costs) [2010] FamCAFC 219, see especially [8]-[10].

Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664

Sfakianakis v Sfakianakis [2019] FamCAFC 54

Applicant:

MR FABINA

Respondent:

MS MANALO

File Number:

SYC 3632 of 2019

Judgment of:

Judge Morley

Hearing date:

7 April 2020

Date of Last Submission:

19 May 2020

Delivered at:

Sydney

Delivered on:

7 December 2020

REPRESENTATION

Counsel for the Applicant:

Ms Treherne

Solicitors for the Applicant:

Daniela Fazio Lawyers

The Respondent appeared on her own behalf.

Counsel for Mr B and Ms C:

Ms Otrebski of Counsel

ORDERS

That the Wife pay the costs of Mr B and Ms C of the proceedings on 7 April 2020 in the fixed sum of $2,490, and that the time allowed for the Wife to pay is within 28 days of the making of final property orders.
That the Wife pay the costs of the Husband of the proceedings on 7 April 2020 in the fixed sum of $1,100 and that the time allowed for the Wife to pay is within 28 days of the making of final property orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3632 of 2019

MR FABINA

Applicant

And

MS MANALO

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to parenting issues, property settlement and interim spousal maintenance between the applicant, Mr Fabina (“the husband”), and the respondent, Ms Manalo (“the wife”). There is one child the subject of the parenting issues proceedings, X, born in 2018.
These reasons relate to an objection to subpoena hearing conducted on 7 April 2020 involving the husband, the wife, and the husband’s parents, Mr B and Ms C as interested persons, being persons to each of whom a subpoena to produce was issued by the Court at the request of the wife, objection being made to each of those subpoenas by the person subpoenaed and by the husband.
The hearing also involved an objection by the husband to subpoena issued by the Court at the request of the wife to The Proper Officer 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: [2020] FCCA 3322
Decision Date: 7 December 2020

CaseChat Overview and Summary

In the matter of *FABINA & MANALO (No.2)*, Judge Morley of the Federal Circuit and Family Court of Australia considered an application for costs following a hearing on 7 April 2020 concerning objections to subpoenas. The parties involved were the Wife, the Husband, and two third parties, Mr B and Ms C, whose objections to subpoenas had been heard.

The central legal issue before the Court was the determination of costs payable by the Wife to the Husband and to Mr B and Ms C, arising from the proceedings on 7 April 2020. This involved assessing the appropriate quantum of costs and the timeframe for their payment.

Judge Morley ordered that the Wife pay the costs of Mr B and Ms C in the fixed sum of $2,490, and the costs of the Husband in the fixed sum of $1,100. In both instances, payment was to be made by the Wife within 28 days of the making of final property orders.

Orders

Orders of the court

That the Wife pay the costs of Mr B and Ms C of the proceedings on 7 April 2020 in the fixed sum of $2,490, and that the time allowed for the Wife to pay is within 28 days of the making of final property orders.

That the Wife pay the costs of the Husband of the proceedings on 7 April 2020 in the fixed sum of $1,100 and that the time allowed for the Wife to pay is within 28 days of the making of final property orders.

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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