Fattore & Blair - [2024] FedCFamC1A 11

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Fattore & Blair [2024] FedCFamC1A 11

Appeal from: Fattore & Blair [2023] FedCFamC2F 1130

Appeal number: NAA 281 of 2023

File number: SYC 5999 of 2022

Judgment of: CAMPTON J

Date of judgment: 14 February 2024

Catchwords: FAMILY LAW –– APPEAL – COSTS Where the appeal was dismissed during its hearing on the appellant’s application –Where the respondent sought costs – Where the appeal was incompetent – Where the appellant had not filed a schedule of costs in accordance with Court orders and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the appellant opposed the costs application – Order for the appellant to pay the respondents costs.

Legislation:
Family Law Act1975 (Cth) Pt VII, ss 69F and 117

Federal Circuit and Family Court of Australia Act2021 (Cth) ss 26, 28 and 43

Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) rr 1.04, 12.17 and 13.53

Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) 4.02

Cases cited:
Darley (No 2) [2023] FedCFamC1A 112

Rilak (No 2) [2022] FedCFamC1A 100

Sfakianakis & Sfakianakis (2019) Fam LR 419; [2019] FamCAFC 54

Trewitt & Brock [2021] FedCFamC1A 9

Number of paragraphs: 26

Date of hearing: 14 February 2024

Place: Sydney

Counsel for the Appellant: Mr Sansom SC

Solicitor for the Appellant: ATW Family Law

Counsel for the Respondent: Dr Barnett SC

Solicitor for the Respondent: Mills Oakley Lawyers
ORDERS

NAA 281 of 2023
SYC 5999 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR FATTORE

Appellant

AND:
MS BLAIR

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

14 FEBRUARY 2024

THE COURT ORDERS THAT:
1.Within 28 days, the appellant pay the respondent’s cots of the appeal, fixed in the sum of $20,000.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Fattore & Blair has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:

By way of a Notice of Appeal filed 10 October 2023, Mr Fattore (“the father”), sought to appeal a single discretionary procedural order dismissing his attempt to make use of s 69F of the Family Law Act1975 (Cth) (“the Act”) as a…

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 Fattore & Blair

Details

AGLC: Fattore & Blair [2024] FedCFamC1A 11
Case: [2024] FedCFamC1A 11
Decision Date: 14 February 2024

CaseChat Overview and Summary

Mr Fattore appealed a decision of the Federal Circuit and Family Court of Australia (Family Law) to Ms Blair. The appeal was dismissed during its hearing, when the appellant applied to discontinue the appeal. The respondent applied for costs in accordance with section 107(2) of the Family Law Act 1975 (Cth). The court was required to determine whether the appellant’s failure to file a schedule of costs in accordance with court orders and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) justified the imposition of costs against the appellant. The appellant opposed the costs application.

The court noted that the appellant had been ordered to file a schedule of costs by a certain date, but had not done so. The appellant had also failed to file an affidavit of costs, despite a second order to do so. The court held that the appellant had not acted in accordance with the court’s orders, or with the rules. The court held that the imposition of costs was appropriate in the circumstances. The court ordered the appellant to pay the respondent’s costs in the sum of $20,000 within 28 days of the order.

This decision illustrates the importance of complying with court orders and legal requirements in family law proceedings. The court held that failure to file a schedule of costs, and to otherwise comply with court orders and rules, could result in the imposition of costs against an appellant. The decision is a reminder that compliance with legal requirements is critical in family law proceedings, and that failure to do so can have serious consequences.

Orders

Orders of the court

NAA 281 of 2023

SYC 5999 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR FATTORE

Appellant

AND:

MS BLAIR

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

14 FEBRUARY 2024

THE COURT ORDERS THAT:

1. Within 28 days, the appellant pay the respondent’s cots of the appeal, fixed in the sum of $20,000.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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.

NAA 281 of 2023 SYC 5999 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR FATTORE Appellant
AND:	MS BLAIR Respondent

Appeal from:	Fattore & Blair [2023] FedCFamC2F 1130
Appeal number:	NAA 281 of 2023
File number:	SYC 5999 of 2022
Judgment of:	CAMPTON J
Date of judgment:	14 February 2024
Catchwords:	FAMILY LAW –– APPEAL – COSTS Where the appeal was dismissed during its hearing on the appellant’s application –Where the respondent sought costs – Where the appeal was incompetent – Where the appellant had not filed a schedule of costs in accordance with Court orders and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the appellant opposed the costs application – Order for the appellant to pay the respondents costs.
Legislation:	Family Law Act1975 (Cth) Pt VII, ss 69F and 117 Federal Circuit and Family Court of Australia Act2021 (Cth) ss 26, 28 and 43 Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) rr 1.04, 12.17 and 13.53 Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) 4.02
Cases cited:	Darley (No 2) [2023] FedCFamC1A 112 Rilak (No 2) [2022] FedCFamC1A 100 Sfakianakis & Sfakianakis (2019) Fam LR 419; [2019] FamCAFC 54 Trewitt & Brock [2021] FedCFamC1A 9
Number of paragraphs:	26
Date of hearing:	14 February 2024
Place:	Sydney
Counsel for the Appellant:	Mr Sansom SC
Solicitor for the Appellant:	ATW Family Law
Counsel for the Respondent:	Dr Barnett SC
Solicitor for the Respondent:	Mills Oakley Lawyers

ORDER MADE BY:	CAMPTON J
DATE OF ORDER:	14 FEBRUARY 2024