IMBARDELLI & IMBARDELLI - [2019] FamCA 399

FAMILY COURT OF AUSTRALIA

IMBARDELLI & IMBARDELLI

[2019] FamCA 399

FAMILY LAW – COSTS – Between parties – Section 117(2A) factors – where the wife seeks costs on an indemnity basis – where husband seeks the wife’s application be dismissed – where the husband was wholly unsuccessful – no exceptional circumstances justifying costs on an indemnity basis – orders made that the husband pay the wife’s costs on a party/party basis.

Family Law Act 1975 (Cth)

Kohan & Kohan (1993) FLC 92-340

APPLICANT:

Ms Imbardelli

RESPONDENT:

Mr Imbardelli

FILE NUMBER:

MLC

8876

2009

DATE DELIVERED:

24 May 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

Written Submissions considered in chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

AMT Legal

SOLICITOR FOR THE RESPONDENT:

Macpherson Kelly

Orders

The husband pay the wife’s cost of and incidental to her application for interim spousal maintenance and her application to set aside final property orders pursuant to s 79A of the Family Law Act 1975 (Cth) on a party-party basis.
Paragraph 1 of the wife’s Application in a Case be adjourned for mention before Justice Macmillan at 10.00 am on 27 May 2019.

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 Imbardelli & Imbardelli 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 order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8876 of 2009

Ms Imbardelli

Applicant

And

Mr Imbardelli

Respondent

REASONS FOR JUDGMENT

The wife in her Amended Application filed 1 September 2017 sought inter alia that the final property orders made by consent in the Federal Circuit Court of Australia on 30 June 2010 be set aside pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”). The wife also sought an order for interim spousal maintenance of $5,000 per month.
The wife’s application for interim spousal maintenance was initially listed for hearing before Senior Registrar Field on 19 January 2018, however the matter was adjourned for hearing before me, together with the wife’s s 79A application on the application of the husband who sought to cross examine the wife in relation to her application for spousal maintenance.
On 22 May 2018, following an eight day hearing, I ordered until further order that the husband pay the wife spousal maintenance of $1,000 per week. That order was not the subject of an appeal.
On 24 October 2018 I set aside the final property orders made 30 June 2010 and published my reasons. On 20 November 2018 the husband filed a Notice of Appeal, however…

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 IMBARDELLI & IMBARDELLI

Details

AGLC: IMBARDELLI & IMBARDELLI [2019] FamCA 399
Case: [2019] FamCA 399
Decision Date: 24 May 2019

CaseChat Overview and Summary

In this matter before Macmillan J of the Family Court of Australia, the wife sought costs on an indemnity basis in relation to her applications for interim spousal maintenance and to set aside final property orders under s 79A of the *Family Law Act 1975* (Cth). The husband sought the dismissal of the wife's applications.

The central legal issue before the court was whether the wife was entitled to an order for costs on an indemnity basis, or alternatively, what form of costs order was appropriate given the husband's complete lack of success in the proceedings.

Macmillan J considered the factors relevant to costs under s 117(2A) of the *Family Law Act 1975* (Cth). His Honour found that while the husband was wholly unsuccessful, there were no exceptional circumstances that would justify departing from the usual order for costs to be assessed on a party/party basis.

Consequently, the court ordered that the husband pay the wife’s costs of and incidental to her application for interim spousal maintenance and her application to set aside final property orders on a party/party basis. A further mention was scheduled to address paragraph 1 of the wife's Application in a Case.

Orders

Orders of the court

The husband pay the wife’s cost of and incidental to her application for interim spousal maintenance and her application to set aside final property orders pursuant to s 79A of the Family Law Act 1975 (Cth) on a party-party basis.

Paragraph 1 of the wife’s Application in a Case be adjourned for mention before Justice Macmillan at 10.00 am on 27 May 2019.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.