Farina & Naima (No. 3) - [2017] FamCA 824

FAMILY COURT OF AUSTRALIA

FARINA & NAIMA (NO. 3)

[2017] FamCA 824

FAMILY LAW – COSTS – the Applicant seeks costs in relation to the final property settlement aspect of the proceedings – Application granted.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Brott & Joachim (2006) FLC 93-259
D & D (Costs) (No 2) (2010) FLC 93-435
Latoudis & Casey (1990) 170 CLR 534
Lenova & Lenova (Costs) (2011) FamCAFC 141
Ruddock and others & Vadarlis and others (2001) 188 ALR 143
Stephens & Stephens and others (Enforcement) (Costs) [2010] FamCAFC 172

APPLICANT:

Ms Farina

RESPONDENT:

Mr Naima

INDEPENDENT CHILDREN’S LAWYER:

Carter Farquar Mediation & Family Law

FILE NUMBER:

BRC

9358

2014

DATE DELIVERED:

9 October 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

In Chambers on the papers following the receipt of written submissions

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Maguire Barnes Family Lawyers by way of written submissions filed on filed on 21 August 2017
RESPONDENT:	By way of written submissions in response filed 15 September 2017

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Carter Farquar Mediation & Family Law

Orders

IT IS ORDERED THAT

The Respondent pay the Applicant’s costs of and incidental to the property settlement aspect of the proceedings between the parties, with such costs to be paid on a party and party basis in an amount agreed between the Applicant and the Respondent or, failing agreement as to quantum, as assessed on a party and party basis, with the amount agreed or assessed to be paid within 30 days of either agreement of quantum or assessment of quantum.

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 Farina & Naima (No. 3) 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 9358 of 2014

Ms Farina

Applicant

And

Mr Naima

Respondent

REASONS FOR JUDGMENT

On 28 July 2017, I made orders and delivered Reasons for Judgment which disposed of the dispute between the parties in relation to the property settlement aspect of the proceedings on foot between them.
Those proceedings, together with the proceedings for parenting orders, commenced before me on 16 January 2016.
On 18 January 2016, the parties reached agreement in relation to interim parenting orders – interim orders were made by consent. What remained for disposition was the competing applications for orders in the property settlement proceedings aspect of the overall proceedings.
The parties at that stage were diametrically opposed.
Ms Farina sought orders dismissing Mr…

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 Farina & Naima (No. 3)

Details

AGLC: Farina & Naima (No 3) [2017] FamCA 824
Case: [2017] FamCA 824
Decision Date: 9 October 2017

CaseChat Overview and Summary

In *Farina & Naima (No. 3)*, Hogan J of the Federal Circuit and Family Court of Australia considered an application for costs following property settlement proceedings between the Applicant and the Respondent. The dispute concerned the allocation of legal costs incurred during the property settlement phase of their litigation.

The central legal issue before the court was the determination of which party should bear the costs of the property settlement proceedings and on what basis. The court was required to decide whether to order one party to pay the other's costs and, if so, whether those costs should be assessed on a party and party basis or on an indemnity basis.

Hogan J ordered that the Respondent pay the Applicant’s costs of and incidental to the property settlement aspect of the proceedings. These costs were to be paid on a party and party basis. The quantum of these costs was to be determined either by agreement between the Applicant and the Respondent or, failing agreement, by assessment. The payment was to be made within 30 days of the agreement or assessment of the quantum of costs.

Orders

Orders of the court

IT IS ORDERED THAT

The Respondent pay the Applicant’s costs of and incidental to the property settlement aspect of the proceedings between the parties, with such costs to be paid on a party and party basis in an amount agreed between the Applicant and the Respondent or, failing agreement as to quantum, as assessed on a party and party basis, with the amount agreed or assessed to be paid within 30 days of either agreement of quantum or assessment of quantum.

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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