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Giordano & Stone (No 2)

Giordano & Stone (No 2)

Case [2022] FedCFamC2F 1081 16 August 2022

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Federal Circuit and Family Court of Australia
(DIVISION 2)
Giordano & Stone (No 2) [2022] FedCFamC2F 1081

File number(s): PAC 3650 of 2021

Judgment of: DEPUTY CHIEF JUDGE MCCLELLAND

Date of judgment: 16 August 2022

Catchwords: FAMILY LAW – COSTS – Application for indemnity costs – Where the father was wholly unsuccessful – Exceptional circumstances for indemnity costs not established – Costs ordered as assessed.

Legislation:
Family Law Act 1975 (Cth) ss 45A, 64(2)(g), 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17

Family Law Rules 2004 (Cth) r 19.18

Cases cited:
Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432

Colgate-Palmolive Company and Anor v Cussons Pty Limited (1993) 46 FCR 225; [1993] FCA 801

Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68

D & D (Costs)(No 2) (2010) FLC 93-435; [2010] FamCAFC 64

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123; [2005] FamCA 158

Giordano & Stone [2022] FedCFamC2F 398

Hitch & Hitch (2012) 47 Fam LR 603; [2012] FamCAFC 124

Idoport Pty Limited v National Australia Bank Limited & Ors [2007] NSWSC 23

Munday v Bowman (1997) FLC 92-784

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Prantage v Prantage (Costs) [2014] FamCA 850

Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

Robinson & Higginbotham (1991) FLC 92-209; [1991] FamCA 5

Rozenblit v Vainer (2018) 262 CLR 478; [2018] HCA 23

Stoian v Fiening (Costs) [2014] FamCA 944

Division: Division 2 Family Law

Number of paragraphs: 29

Date of last submission/s: 27 April 2022

Date of hearing: On the papers

Place: Sydney

The Applicant: Litigant in person

Solicitor for the Respondent: Johnson Vardanega Lawyers
ORDERS

PAC 3650 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR GIORDANO

Applicant

AND:
MS STONE

Respondent

order made by:

DEPUTY CHIEF JUDGE MCCLELLAND

DATE OF ORDER:

16 August 2022

THE COURT ORDERS THAT:
1.The applicant father pay the costs of the respondent mother of and incidental to the father’s Initiating Application filed on 6 July 2021 within 28 days of those costs being agreed or assessed.

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 Giordano & Stone has been approved pursuant to s 121(9)(g) of 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.

Continue reading Giordano & Stone (No 2)

Details

AGLC: Giordano & Stone (No 2) [2022] FedCFamC2F 1081
Case: [2022] FedCFamC2F 1081
Decision Date

CaseChat Overview and Summary

This matter involves an application for indemnity costs made by the mother, Ms Stone, against the father, Mr Giordano, following the dismissal of the father’s initiating application for parenting orders. The father’s application was dismissed by Deputy Chief Judge McClelland on 31 March 2022, with an additional order made that the father could not institute further proceedings without leave of the Court. The mother’s application for indemnity costs was made pursuant to the authority given in s 117 of the Family Law Act 1975 (Cth), which allows the Court to order costs as it considers just.

The court had to determine whether there were circumstances justifying an order for costs in favour of the mother, and if so, whether those costs should be awarded on an indemnity basis. The court considered the financial circumstances of both parties, the conduct of the parties in relation to the proceedings, and whether the father had been wholly unsuccessful. The court also had to determine whether there were exceptional circumstances that would warrant an order for indemnity costs.

In its decision, the court found that the father had been wholly unsuccessful in his application and that his conduct in relation to the proceedings had been inefficient and incompetent, causing unnecessary costs to the mother. However, the court found that there were no exceptional circumstances that would warrant an order for indemnity costs. Instead, the court ordered that the father pay the mother’s costs, to be assessed on a party/party basis within 28 days of those costs being agreed or assessed.

The court ordered that the father pay the costs of the mother of and incidental to the father’s initiating application filed on 6 July 2021 within 28 days of those costs being agreed or assessed.

Orders