Genesalio and Genesalio (No 2) - [2020] FamCAFC 180

FAMILY COURT OF AUSTRALIA

GENESALIO & GENESALIO (NO. 2)

[2020] FamCAFC 180

FAMILY LAW – APPEAL – PROPERTY – COSTS – Where both parties seek their costs of and incidental to the hearing of the appeals – Where in relation to the first appeal there are circumstances which would justify an order for costs being made in the respondent’s favour – Where in relation to the second appeal although it was upheld there are no circumstances justifying an order for costs in the appellant’s favour, and if there were, the appellant’s conduct would provide a basis for the respondent to oppose or offset any order for costs made – Where the appeals were consolidated and heard together and thus the issue of costs arising from the outcomes should be considered together – Where it would be a strange result overall if the respondent was able to obtain an order for costs in the first appeal and there was no order for costs in the successful more substantial second appeal – Where there should be no order for costs in favour of either party – Each party to bear their own costs.

FAMILY LAW – APPEAL – COSTS CERTIFICATES – Where in the event that no costs order was made both parties applied for costs certificates pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) – Where given the first appeal was dismissed costs certificates are not available – Where it is not appropriate for costs certificates to issue – Applications dismissed.

Family Law Act 1975 (Cth) s 117
Federal Proceedings (Costs) Act 1981 (Cth)
Family Law Rules 2004 (Cth) r 19.08

APPELLANT:

Mr Genesalio by his
Case Guardian
Mr M Genesalio

RESPONDENT:

Ms Genesalio

FILE NUMBER:

MLC

7657

2018

APPEAL NUMBERS:

SOA

83 & 88

2018

DATE DELIVERED:

28 July 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

Written Submissions

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

22 October 2018

8 November 2018

LOWER COURT MNC:

NA – Transcript only
[2018] FCCA 3458

REPRESENTATION

THE APPELLANT:

In person with the assistance of his brother Mr M Genesalio

COUNSEL FOR THE RESPONDENT:

Mr Puckey

SOLICITOR FOR THE RESPONDENT:

Mazzeo Lawyers

Orders

Each party bear their own costs.
In appeal no. SOA 88 of 2018 the applications made by both parties for costs certificates to issue pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.

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 Genesalio & Genesalio 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…

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] FamCAFC 180
Decision Date: 28 July 2020

CaseChat Overview and Summary

The appeal in Genesalio and Genesalio (No 2) involved both parties seeking their costs of and incidental to the hearing of the appeals, following two distinct appeals that were consolidated for hearing. The first appeal pertained to property disputes within the family law context, while the second appeal involved a different set of issues, also within family law. The court was tasked with determining whether to order costs in favour of either party, considering the outcomes of both appeals.

The legal issues the court had to address were whether the circumstances of the first appeal justified an order for costs in the respondent's favour and whether the second appeal, though upheld, presented any circumstances warranting an order for costs in the appellant's favour. The court also considered the appellant's conduct in the second appeal and its potential impact on any costs order. Given that the appeals were consolidated and heard together, the court needed to consider the issue of costs arising from the outcomes collectively. The court acknowledged that it would be anomalous for the respondent to obtain an order for costs in the first appeal while there was no such order in the more substantial second appeal.

The court reasoned that there were no circumstances justifying an order for costs in the respondent's favour regarding the first appeal. Although the second appeal was upheld, the appellant's conduct provided a basis for the respondent to oppose or offset any order for costs. Considering the outcomes together, the court concluded that it would be inappropriate to make a costs order in favour of either party. The court also dismissed the applications for costs certificates as neither party was entitled to them. The final orders were that each party bear their own costs and that the applications for costs certificates be dismissed.

Orders

Orders of the court

Each party bear their own costs.

In appeal no. SOA 88 of 2018 the applications made by both parties for costs certificates to issue pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.

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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