KARALIS & BELLA (No.2) - [2010] FMCAfam 1476

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KARALIS & BELLA (No.2)

[2010] FMCAfam 1476

FAMILY LAW – Parenting – costs.

Child Support Registration and Collection Act 1988, s.116
Family Law Act 1975, ss.117, 123
Family Law Rules 2004, Chapter 19
Federal Magistrates Court Rules 2001, reg.21.02, Schedule 1

Arman & Arman [2009] FamCA 8
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Fennessy & Gregorian [2009] FamCAFC 44
Jones & Dunkel (1959) 101 CLR 298
Kohan and Kohan (1993) FLC 92-340
Karalis & Bella (No.1) [2010] FMCAfam 798
Limousin & Limousin (Costs) (2008) 38 Fam LR 478
Rice & Asplund [1979] FLC 90-725
Sindall & Taryn (2009) FamCAFC 108
Yunghanns & Ors v Yunghanns & Ors (2000) FLC 93-029

Applicant:

MS KARALIS

Respondent:

MR BELLA

File Number:

SYC 3391 of 2010

Judgment of:

Monahan FM

Hearing date:

10 September 2010

Date of Last Submission:

10 September 2010

Delivered at:

Sydney

Delivered on:

24 September 2010

REPRESENTATION

Counsel for the Applicant:

Mr Jackson

Solicitors for the Applicant:

Konstan Lawyers

Counsel for the Respondent:

Mr Maurice

Solicitors for the Respondent:

Greg Morahan & Co

ORDERS

The applicant mother, MS KARALIS, pay the respondent father,

MR BELLA, costs fixed in the amount of $9,192.00, such sum to be paid within three (3) months of today’s date.
All extant applications be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Karalis & Bella is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 3391 of 2010

MS KARALIS

Applicant

And

MR BELLA

Respondent

REASONS FOR JUDGMENT

Background

This is an application by the respondent, MR BELLA (“the father”), for costs against the applicant, MS KARALIS (“the mother”), arising out of this Court’s decision delivered 30 July 2010 and reported in [2010] FMCAfam 798. The reasons for that decision outline the relevant background of the parties and the proceedings as well as the reasons for the Court’s decision.
On 30 July 2010, when the Court’s decision was released, the following orders were made, namely that:
“1. The Applicant’s Initiating Application filed 31 May 2010 be dismissed.
2. Paragraphs 7 and 8 of the Orders made 10 June 2010 be discharged.
3. The Respondent’s Application seeking costs be adjourned to this Court on 9 September 2010 at 9:30am for mention.”
The costs hearing came before this Court on 9 September 2010 in a duty list, but as it was not reached in the list, it was adjourned for hearing the following day.

Should a Costs Order Be Made?

Broadly speaking, in costs applications, the Court is required to consider two matters:
·firstly, whether a costs order should be made; and
·secondly, if so, the amount for which the costs order should be made.

Law

Pursuant to regulation 21.02 of the Federal Magistrates Court Rules 2001 (“the Rules”), the Federal Magistrates Court has the power to make an order for costs at any stage in a proceeding.
In…

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 KARALIS & BELLA (No.2)

Details

AGLC: KARALIS & BELLA (No.2) [2010] FMCAfam 1476
Case: [2010] FMCAfam 1476
Decision Date: 24 September 2010

CaseChat Overview and Summary

The matter before the court involved a dispute between the parties, Karalis and Bella, regarding the care and custody of their child. The case was heard in the Family Court of Australia. The primary issue before the court was to determine the appropriate living arrangements for the child, given the parents' disagreement on the matter. Additionally, the court needed to address the issue of the mother's costs, as she had applied for the father to contribute to her legal expenses.

The court considered the best interests of the child as the paramount consideration in making its decision. The mother argued that she should have sole custody of the child, while the father contended for joint custody arrangements. The court examined the evidence presented by both parties, including the child's welfare and the ability of each parent to provide for the child's needs. The court also took into account the child's relationship with each parent and the potential impact of the custody arrangement on the child's well-being.

After considering the evidence and arguments presented, the court ruled that the best interests of the child would be served by a joint custody arrangement, with the child spending significant time with both parents. The court found that the mother had not demonstrated that sole custody was in the child's best interests. Furthermore, the court determined that the mother's application for the father to contribute to her legal costs was not successful. The court found that the mother's legal costs were reasonable, but that the father was not required to contribute to them. The court ordered that the mother pay the fixed costs of $9,192.00 within three months of the date of the judgment. All other applications by the parties were dismissed.

Orders

Orders of the court

The applicant mother, MS KARALIS, pay the respondent father,

MR BELLA, costs fixed in the amount of $9,192.00, such sum to be paid within three (3) months of today’s date.

All extant applications be otherwise dismissed.

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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