Gambetto & Farrelli (No 8) - [2022] FedCFamC2F 1302

Federal Circuit and Family Court of Australia
(DIVISION 2)
Gambetto & Farrelli (No 8) [2022] FedCFamC2F 1302

File number: SYC 4559 of 2021

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 28 September 2022

Catchwords: FAMILY LAW – costs– unsuccessful application included unusual aspects – offer in writing manipulative – costs fixed to avoid disputation.

Legislation:
Family Law Act 1975 (Cth) s 117.

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 192.

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) sch 1.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13.

Cases cited:
Colgate-Palmolive Co v Cussons (1993) 43 FCR 225.

Gambetto & Farrelli (No 6)] [2022] FedCFamC2F 1007.

Kohan and Kohan (1993) FLC 92-340.

Munday v Bowman (1997) FLC 92-784.

Rice & Asplund (1979) FLC 90-725.

Division: Division 2 Family Law

Number of paragraphs: 22

Date of last submission: 31 August 2022

Date of hearing: 2 August 2022

Place: Melbourne

Solicitor for the Applicant: Worland Family Lawyers

The Respondent: On his own behalf

The Independent Children's Lawyer: Did not participate
ORDERS

SYC 4559 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS FARRELLI

Applicant

AND:
MR GAMBETTO

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

28 SEPTEMBER 2022

THE COURT ORDERS THAT:
1.That in respect to the application for review and/or extension of time to review filed 15 April 2022 and heard on 3 June 2022, the Father, Mr Gambetto, pay the Mother’s costs fixed in the sum of $12,416, on or before 4.00 pm Wednesday 30 November 2022.

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 a pseudonym Gambetto & Farrelli has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY

On 3 June 2022 I heard the Father's application for review filed on 15 April 2022. I delivered judgement on 2 August 2022 dismissing those applications. These reasons should be read with that judgment, Gambetto & Farrelli (No 6) [2022] FedCFamC2F 1007, anonymised as Gambetto & Farrelli (No 6) [2022] FedCFamC2F 1007.
On 2 August 2022 I ordered that any application for costs be made in writing by short submission (no more than three pages), headed "Application For Costs", within 14 days…

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: [2022] FedCFamC2F 1302
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 2) dealt with a case between Ms Farrelli and Mr Gambetto. The dispute involved an unsuccessful application for review and extension of time to review filed by Mr Gambetto, who represented himself in the proceedings. The Mother, Ms Farrelli, subsequently filed an application for costs following the dismissal of Mr Gambetto's application. The key legal issues before the court were whether indemnity costs were warranted and, if so, what the appropriate amount of costs should be.

Judge O'Shannessy considered the relevant principles and statutory provisions governing costs orders in family law matters, including the Family Law Act 1975 and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The court noted that indemnity costs are only awarded in exceptional circumstances, such as where proceedings are brought for an ulterior motive or in wilful disregard of known facts. The court found that Mr Gambetto's application was wholly unsuccessful, brought well out of time, and included serious and unfounded allegations of fraud. However, the court determined that while the circumstances came close to warranting indemnity costs, the exceptional nature of the dispute about the welfare of a child meant that only ordinary costs should be awarded to avoid prolonging the litigation.

Accordingly, the court fixed the costs payable by Mr Gambetto at $12,416, which included solicitor's fees and counsel's fees. The court emphasised the importance of fixing costs to avoid further disputation between the parties. The enforcement of the costs order was stayed for two months to give Mr Gambetto an opportunity to organise funds to pay the costs.

Orders