Latifi & Galica (No 2) - [2022] FedCFamC2F 1733

Federal Circuit and Family Court of Australia
(DIVISION 2)
Latifi & Galica (No 2) [2022] FedCFamC2F 1733

File number(s): SYC 8379 of 2021

Judgment of: JUDGE MURDOCH

Date of judgment: 14 December 2022

Catchwords: FAMILY LAW – COSTS – where the father was wholly unsuccessful in his application for review of interim parenting orders – where the father was put on notice that in the event he proceeded with the application for review and was unsuccessful the mother would be seeking costs on an indemnity basis – the father is ordered to pay the mother’s costs in a fixed sum – the father is further ordered to pay the mother’s costs in bringing this costs application in a fixed sum

Legislation:
Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) Sch 1

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.13

Cases cited:
Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29;

Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432;

Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 801;

In the marriage of Schwarz (1985) FLC 91-618;

Kohan & Kohan [1992] FamCA 116;

Latoudis v Casey [1990] HCA 59

Munday & Bowman (1997) FLC 92-784;

Penfold & Penfold [1980] HCA 4;

Yunghanns & Yunghanns [2000] FamCA 681

Division: Division 2 Family Law

Number of paragraphs: 39

Date of hearing: 5 September 2022

Place: Parramatta

Solicitor for the Applicant: Ms Mooney SC

Solicitor for the Respondent: Mr Williams KC
ORDERS

SYC 8379 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS LATIFI

Applicant

AND:
MR GALICA

Respondent

order made by:

JUDGE MURDOCH

DATE OF ORDER:

14 DECEMBER 2022

THE COURT ORDERS THAT:
1.That within 28 days the father shall pay the mothers costs of and incidental to the application for review filed on 29 July 2022 assessed at $16,075 inclusive of GST.
2.That within 28 days the father shall pay the mothers costs of and incidental to this application for costs assessed at $260 inclusive of GST.

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 a pseudonym Latifi & Galica (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH

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: [2022] FedCFamC2F 1733
Decision Date

CaseChat Overview and Summary

The matter of Latifi & Galica (No 2) involved parenting proceedings concerning the two children of the relationship. The case focused on the mother's application for costs following the dismissal of the father's Application for Review of interim parenting orders. The court was tasked with deciding whether the father should bear the mother's costs thrown away and, if so, the appropriate basis for the costs.

The court considered the relevant legal principles under Section 117 of the Family Law Act 1975 (Cth) and Rule 12.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). It determined that the father's application for review was wholly unsuccessful, and he had been given the opportunity to withdraw his application on the condition that each party bear their own costs, which he declined. Given these circumstances, the court found that an order for costs was appropriate. It rejected the mother's request for indemnity costs, as the father had not been bound by a specific costs agreement. Instead, the court opted for a fixed sum to compensate the mother for the costs thrown away, reflecting the father's re-litigation of issues already determined by a Judicial Registrar.

Consequently, the court ordered the father to pay the mother's costs in a fixed sum. For the costs thrown away in defending the Application for Review, the court assessed the costs at $16,075, inclusive of GST, in accordance with the scale as set out in Schedule 1 of the Division 2 Rules, and including the costs of King's Counsel appearing at the hearing. Additionally, the court ordered the father to pay the mother's costs in bringing the costs application, assessed at $2,600, inclusive of GST. The court made these orders to avoid further delay and inconvenience to the parties and to ensure that the father bore some responsibility for the costs incurred by the mother.

Orders