FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lazzari & Lazzari (No 2) [2023] FedCFamC1F 585
File number(s): PAC 3217 of 2019 Judgment of: HANNAM J Date of judgment: 28 July 2023 Catchwords: FAMILY LAW – COSTS – Where the mother seeks that the father pay her costs on an indemnity basis – Consideration of applicable principles – Where the father misled the Court whilst conducting his case – Where the father was wholly unsuccessful in his parenting application – Where no costs agreement was provided pursuant to the Rules – Where r 12.13(4) dispensed with – Where a portion of costs sought awarded on an indemnity basis. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.08, 12.13, 12.17, 12.28
Cases cited: Albert v Plowman [2022] FedCFamC1F 243
Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 46 FCR 225
D & D (Costs) (No. 2) (2010) FLC 93-435
Gabaldon & Gabaldon [2015] FamCAFC 59
Gaber & Akhtar (No 2) [2021] FamCA 147
Hawkins & Roe (2012) [2012] FamCAFC 77
Joyce & Fante [2013] FamCAFC 141
Legal Aid ACT v Westwell (2021) 62 Fam LR 54
Mansfield and Ors & Mansfield and Anor (2019) FLC 93‑920
PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123
Penfold v Penfold (1980) 144 CLR 311
SCVG & KLD [2017] FamCAFC 95
Senfl & Blee [2017] FamCA 901
Yanez & Yanez [2021] FamCA 148
Yunghanns & Ors & Yunghanns & Ors & Yunghanns (2000) FLC 93-029
Division: Division 1 First Instance Number of paragraphs: 92 Date of last submission/s: 2 May 2023 Date of hearing: In chambers Place: Parramatta Counsel for the Applicant: Mr Zmood Solicitor for the Applicant: Ark Law Lawyers Counsel for the Respondent: Mr Roberts Solicitor for the Respondent: Barkus Doolan Winning Counsel for the Independent Children's Lawyer: Mr Maddox Solicitor for the Independent Children's Lawyer: Legal Aid NSW Parramatta Family Law ORDERS
PAC 3217 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LAZZARI
Applicant
AND: MS LAZZARI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HANNAM J
DATE OF ORDER:
28 July 2023
THE COURT ORDERS THAT:
1.The father pay 60 percent of the costs of the mother on an indemnity basis fixed in the sum of $164,662.34, with such costs to be paid within 28 days of the date of these orders or as otherwise agreed between the parties.
2.With the consent of the mother, the mother shall pay the balance of her share of the Independent Children’s Lawyers’ costs being $5,122.25.
3.All outstanding applications are hereby finalised.
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…
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Details
- AGLC
- Lazzari & Lazzari (No 2) [2023] FedCFamC1F 585
- Case
- [2023] FedCFamC1F 585
- Decision Date
CaseChat Overview and Summary
Lazzari & Lazzari (No 2) was a case before the Family Court of Australia concerning the three children of the parties, a son and twin daughters. The dispute centred around the father's alleged extra-marital sexual activity and drug use, which led to the mother leaving the family home with the children. The father initiated the proceedings seeking parenting and property orders. Throughout the case, the father provided false information and drug test results to mislead the mother, the Independent Children's Lawyer, and the Court. The mother was unaware of the father's continued illicit drug use, as he had been providing false test results indicating he was drug-free.
The primary legal issue before the court was whether the circumstances justified departing from the usual rule that each party bears their own costs and whether the exceptional circumstances warranted an order for the father to pay the mother's costs on an indemnity basis. The court had to consider the history of the matter, the complexity of facts, the appointment of experts, the parties' attendance on mediators, and the level of experience, specialisation, and seniority of the lawyers involved. The court also needed to determine the full extent of the father's deception and the impact it had on the proceedings.
In determining the costs, the court found that the mother had incurred the costs fairly, reasonably, and proportionately in meeting the case brought by the father. The court was satisfied that more than half of the costs incurred by the mother were related to matters for which the father was responsible. Given the father's deception and the need for a final hearing, the court concluded that the just sum for the father to pay was 60% of the actual costs the mother incurred and claimed as indemnity costs. The court awarded the mother costs on an indemnity basis in the amount of $164,662.34, being 60% of the figure sought by her.
The court made orders that the father pay 60% of the mother's actual costs and claims as indemnity costs in the amount of $164,662.34. This decision recognised the father's responsibility for the deception and the complexity of the case, leading to the substantial costs incurred by the mother.
The primary legal issue before the court was whether the circumstances justified departing from the usual rule that each party bears their own costs and whether the exceptional circumstances warranted an order for the father to pay the mother's costs on an indemnity basis. The court had to consider the history of the matter, the complexity of facts, the appointment of experts, the parties' attendance on mediators, and the level of experience, specialisation, and seniority of the lawyers involved. The court also needed to determine the full extent of the father's deception and the impact it had on the proceedings.
In determining the costs, the court found that the mother had incurred the costs fairly, reasonably, and proportionately in meeting the case brought by the father. The court was satisfied that more than half of the costs incurred by the mother were related to matters for which the father was responsible. Given the father's deception and the need for a final hearing, the court concluded that the just sum for the father to pay was 60% of the actual costs the mother incurred and claimed as indemnity costs. The court awarded the mother costs on an indemnity basis in the amount of $164,662.34, being 60% of the figure sought by her.
The court made orders that the father pay 60% of the mother's actual costs and claims as indemnity costs in the amount of $164,662.34. This decision recognised the father's responsibility for the deception and the complexity of the case, leading to the substantial costs incurred by the mother.
Orders
Orders of the court
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Background
Background to the litigation
The question for me to determine is whether there are circumstances that justify departing from the usual rule that each party shall bear his or her own costs, and if so, whether these circumstances are so exceptional to justify that an order be made that the father pay the mother’s costs on an indemnity basis.BACKGROUND The parenting proceedings concerned the parties’ three children (“the children”), being a son (now aged seven) and twin daughters (now aged six). The parties separated on 16 June 2019 when the mother left the family home with the children after becoming aware through the discovery of a second phone that the father was participating in extra-marital sexual activity and drug use. The following month on 9 July 2019, the father commenced these proceedings seeking both parenting and property orders. On 8 August 2019 orders were made by consent for the father to be restrained from consuming non-prescription or prescription drugs within 24 hours of the children spending time with him and that he undergo hair testing every three months and weekly urinalysis to monitor his substance misuse. Pursuant to those orders, the children initially spent time with the father under professional supervision which subsequently became supervised by paternal family members. On 20 December 2019 orders were made with the parties’ consent to finalise the property proceedings and as a result, the mother retained the former family home. The father conceded in his trial affidavit filed shortly before the final hearing that he recommenced using illicit substances in December 2019 or March 2020. The mother was unaware at the time that the father had recommenced his illicit drug use as the father purported to have been complying with orders for monitoring his substance use and had provided to the mother drug test results which indicated he was drug free. The father continued to maintain throughout 2020 that he remained drug free and throughout this period continued to provide test results to the mother in January, April, July and October 2020 which all indicated that he was negative for any drugs. On 18 January 2021 orders were made with the consent of the parties for the appointment of a Court Appointed Expert (“the expert”) and an ICL, and the requirement that the children’s time with the father be supervised was removed. At the time, it was the understanding of the mother, the ICL, and the Court that the results of the purported drug tests provided by the father over the previous 12 months accurately reflected that he was not engaging in substance misuse during this period. Although supervision was dispensed with pursuant to the 18 January 2021 orders, the father continued to undergo hair testing for the purposes of monitoring his illicit and prescription drug use every three months as he remained bound by earlier orders. After records of a sexual health centre attended by the father (“the sexual health centre”) were produced on subpoena, the father made arrangements with the sexual health centre that his name be changed so that he could undergo testing (for sexually transmitted infections) and provide information about his sexual activities and drug use anonymously in the future. The father provided further identity details and started a new medical record at the centre under a new name and requested that the records under his correct name and the new name not be linked. As a result of changing his name for these purposes and not advising the mother or ICL of the changed name at any time, complete records from that centre were unable to be obtained.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Having regard to the history of the matter, the complexity of facts, the appointment of experts, the parties’ attendance on mediators and the level of experience, specialisation and seniority of lawyers concerned, I am satisfied that the mother has incurred these costs fairly, reasonably and proportionately in order to meet the case brought by the father. CONCLUSION In these proceedings the only offers to settle the dispute (which were rejected by both parties) were based on an incorrect understanding of the facts. Further, the expert’s opinion was formulated on the basis of false and misleading information either given or generated by the father. The full extent of the father’s deception had also not been revealed in his trial affidavit and even in the evidence produced on subpoena. In these circumstances, it was inevitable that there would be a final hearing. However, it was the father who is entirely responsible for that deception and who continued to deceive the mother, the ICL and the expert about crucial matters in the proceedings, some of which (such as the falsification of drug test results) were only revealed under cross-examination. Other matters (such as his admitted drug use and sexual activity) contained within records of the sexual health centre did not ever come to light due to actions taken by the father to prevent this occurring. In my view, in all of the foregoing circumstances more than half of the costs that the mother incurred related to matters for which the father was responsible. Taking into account all of the mattes referred to in these Reasons and attaching weight to certain matters for the reasons given, I am satisfied that the just sum for the father to pay is 60 percent of the actual costs the mother incurred and claims as indemnity costs. As such, I propose to award costs to the mother on an indemnity basis in the amount of $164,662.34 being 60 percent of the figure sought by her. Accordingly, I make the orders set out at the forefront of these Reasons.
Ratio Decidendi
Legal Principle Established
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