Genesalio & Genesalio (No 3) - [2023] FedCFamC1F 613

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Genesalio & Genesalio (No 3) [2023] FedCFamC1F 613

File number(s): MLC 7657 of 2018

Judgment of: JOHNS J

Date of judgment: 25 July 2023

Catchwords: FAMILY LAW – COSTS – joinder application – costs reserved – where applicant successfully joined second respondent to proceedings – where all parties filed written submissions as to costs – where applicant seeks both first and second respondent pay her costs on party/party basis – where first and second respondent oppose costs application – where there was a delay in bringing joinder application – where final hearing has not taken place yet – costs to be reserved for final hearing

Legislation:
Family Law Act 1975 (Cth), ss 79, 117(1), (2) & (2A)

Federal Circuit and Family Court of Australia (Family Law) Rules (2021), Rules 12.17(1) & (3)

Cases cited:
Genesalio & Genesalio [2023] FedCFamC1F 160

I and I (1995) FLC 92-625

Division: Division 1 First Instance

Number of paragraphs: 40

Date of last submission/s: 24 May 2023

Date of hearing: On the papers

Place: Melbourne

Solicitor for the Applicant: Mazzeo Lawyers

Solicitor for the First Respondent: Matthew Oldham Barrister & Solicitor

Solicitor for the Second Respondent: Litigant in person
ORDERS

MLC 7657 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS GENESALIO

Applicant

AND:
MR GENESALIO

First Respondent

MR M GENESALIO

Second Respondent

order made by:

JOHNS J

DATE OF ORDER:

25 July 2023

THE COURT ORDERS THAT:
1.That the wife’s application for costs made by submissions filed 10 May 2023 arising from the hearing of her application to join the second respondent as a party to the proceedings be reserved to the final hearing.

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 pseudonym Genesalio & Genesalio has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT

On 26 April 2023 I made orders that the second-named respondent, the husband’s brother Mr M Genesalio, be joined as a party to the proceedings. I also made orders in relation to valuation of identified assets.
By Written Submissions filed 10 May 2023 in accordance with those orders, the wife seeks that the husband and the second respondent pay her costs of the joinder application on a party/party basis.
Both the husband and the second respondent…

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: [2023] FedCFamC1F 613
Decision Date

CaseChat Overview and Summary

In Genesalio & Genesalio (No 3) [2023] FedCFamC1F 613, the Federal Circuit and Family Court of Australia (Division 1) was called upon to decide whether the applicant, Ms Genesalio, should be awarded costs of her application to join her husband's brother, Mr M Genesalio, as a party to the proceedings. Both the husband and Mr M Genesalio opposed the application for costs. The court was required to decide whether the wife was entitled to costs given the husband and Mr M Genesalio had been unsuccessful in opposing the joinder application, and if so, whether those costs should be awarded at that time or reserved for the final hearing.

The court noted that the general rule under the Family Law Act 1975 is that each party bears their own costs, subject to specific provisions that allow the court to order costs if it is of the opinion that circumstances justify it. In making such an order, the court must consider several factors, including the financial circumstances of the parties, their conduct in the proceedings, and whether a party was wholly unsuccessful. The court held that while the wife had a triable claim against Mr M Genesalio and that he was a necessary party to the proceedings, it would be premature to determine the costs application at that time, as the outcome of the wife's claims against Mr M Genesalio was still to be determined. The court also noted the wife's delay in bringing the joinder application, which had necessitated the interlocutory hearing. Accordingly, the court decided to reserve the question of costs related to the wife's application for joinder to be determined at the conclusion of the proceedings.

The court ordered that the wife's application for costs made by submissions filed on 10 May 2023 arising from the hearing of her application to join the second respondent as a party to the proceedings be reserved to the final hearing.

Orders