Family Court of Australia
Giunta & Giunta (No. 4) [2021] FamCA 554
File number(s):
SYC 3842 of 2018
Judgment of:
MCCLELLAND DCJ
Date of judgment:
29 July 2021
Catchwords:
FAMILY LAW – COSTS – Where the wife seeks the husband pay her costs of the substantive proceedings for parenting and property orders on an indemnity basis – Where conduct of the husband in the proceedings is a relevant consideration – Where a genuine dispute existed in respect to the parenting aspect of the proceedings – Where the formal written offer of settlement from the wife justifies making of orders for costs in respect to the property dispute – Consideration of calculation of costs – Where conduct of the husband does not justify orders for costs on an indemnity basis – Where no evidence of the nature of work for which the wife has incurred legal costs – Where parenting and property aspects of the proceedings were intertwined – Where the Court is unable to determine fair and reasonable estimate of costs relating to property dispute – Order made for the husband to pay 50 per cent of costs on party/party basis incurred by the wife from date of settlement offer as agreed or assessed.
Legislation:
Family Law Act 1975 (Cth) ss 114, 117, 117C
Family Law Rules 2004 (Cth) rr 1.04, 1.08, 19.18, Sch 1 Pt 1
Federal Circuit Court Rules 2001 (Cth) r 1.03
Federal Court of Australia Act 1976 (Cth) ss 37M, 37N
Family Court of Australia and Federal Circuit Court of Australia, Joint Practice Direction 1 of 2020 – Core Principles in the Case Management of Family Law Matters, 28 January 2020
Cases cited:
Byrnes v Brisconnections Management Company Limited (No. 2) [2009] FCA 1432
Cabasso & Cabasso [2007] FamCA 511
Camm v Linke Nominees Pty Ltd (No. 4) [2013] FCA 223
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123
Giunta & Giunta (No. 3) [2021] FamCA 272
I and I (No 2) (1995) FLC 92-625
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Kennon v Kennon (1997) FLC 92-757
Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664
Modra v Victoria (2012) 205 FCR 445
Parke & The Estate of the Late A Parke (2016) FLC 93-748
Penfold v Penfold (1980) 144 CLR 311
Pierson & Romilly (2020) FLC 93–959
Ryan v Primesafe (2015) 323 ALR 107
Specsavers Pty Ltd v The Optical Superstore Pty Ltd (No. 4) (2012) ATPR 42–403
Specsavers Pty Ltd v The Optical Superstore Pty Ltd (2012) 208 FCR 78
Stoian & Fiening (Costs) [2014] FamCA 944
Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys [2012] FCA 282
Warbrick & Warbrick (No. 2) (2021) FLC 94-030
Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe (No. 2) [2017] NSWSC 1362
Number of paragraphs:
73
Date of hearing:
26 July 2021
Place:
Sydney by web conference
Counsel for the…
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- AGLC
- Giunta and Giunta (No. 4) [2021] FamCA 554
- Case
- [2021] FamCA 554
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the husband's conduct warranted costs being awarded on an indemnity basis, and how to assess and apportion costs given the intertwined nature of the parenting and property aspects of the proceedings, particularly in light of the wife's settlement offer. The court also considered the wife's applications filed on 7 June 2021 and 14 July 2021.
McClelland DCJ found that while a genuine dispute existed regarding the parenting aspect, the husband's conduct did not justify an indemnity order for costs. However, the wife's formal written offer of settlement was considered a significant factor justifying cost orders in respect to the property dispute. Due to the lack of evidence detailing the nature of the work for which the wife had incurred legal costs and the intertwined nature of the parenting and property proceedings, the court was unable to make a fair and reasonable estimate of costs relating solely to the property dispute. Consequently, the court ordered the husband to pay 50 per cent of the wife's costs, assessed on a party/party basis, incurred from the date of the settlement offer, being 14 November 2019. The wife's application filed on 14 July 2021 was dismissed, with no orders as to costs for that application or the application filed on 7 June 2021.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. Mr Giunta (“the Husband”) pay 50 per cent of the costs incurred by Ms Giunta (“the Wife”), assessed on a party/party basis, in respect to the period subsequent to 14 November 2019, in relation to the Initiating Application filed by the Husband on 18 June 2018.
2. The amount payable, pursuant to Order 1, is to be paid within 28 days of those costs being agreed or assessed.
3. The Application in a Case filed 14 July 2021 by the Wife is dismissed.
4. There be no orders as to costs in relation to the Wife’s Application in a Case filed 7 June 2021 and the Application in a Case filed 14 July 2021.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Giunta & Giunta has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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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