Lenardi and Lenardi (No. 2) - [2011] FamCA 604

FAMILY COURT OF AUSTRALIA

LENARDI & LENARDI (NO. 2)

[2011] FamCA 604

FAMILY LAW – COSTS – Between parties in relation to both parenting and property matters – s 117(2A)(a) disparity between parties’ financial circumstances –
s 117(2A)(c) conduct of both parties to the proceedings criticised – S117(2A)(e) neither party wholly unsuccessful – Costs order made against wife due to her favourable financial circumstances

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Browne & Green (2002) FLC 93-115
I and I (No. 2) (1995) FLC 92-625
Marinko, In the Marriage of (1983) FLC 91-307
McDonald and McDonald (1994) FLC 92-508
Penfold v Penfold (1980) 144 CLR 311

APPLICANT:

Mr Lenardi

RESPONDENT:

Ms Lenardi

FILE NUMBER:

PAC

1472

2007

DATE DELIVERED:

3 August 2011

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Collier J

HEARING DATE:

1 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton

SOLICITOR FOR THE APPLICANT:

McPhee Kelshaw

COUNSEL FOR THE RESPONDENT:

Mr Gould

SOLICITOR FOR THE RESPONDENT:

Family Law Matters

Orders

I discharge all and any Orders reserving issues of costs.
I order that the wife pay to the husband, for his costs, a sum agreed between the parties, within a time agreed between them for payment. Such agreements are to be evidenced in writing within one (1) month of the date of these Orders.
That in the event the parties cannot reach an agreement in accordance with paragraph (2) above, then the wife shall pay to the husband an amount equivalent to forty per cent of his costs and disbursements properly incurred in the preparation for and conduct of the substantive hearing as to the issues of parenting and property and this application for costs, but excluding any previously reserved costs, as taxed or assessed by an appropriate taxing officer or assessor, on a party/party basis.
That unless otherwise agreed and evidenced in writing, the sum determined to be paid by the wife to the husband shall be paid within four (4) months of the issue of the appropriate certificate of assessment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lenardi & Lenardi (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1472 of 2007

Mr Lenardi

Applicant Husband

And

Ms Lenardi

Respondent Wife

REASONS FOR JUDGMENT

By an Application in a Case emailed to the Court on 9 May 2011 and filed on 20 June 2011, the husband sought the following orders:
1. That the wife pay the husband’s costs of and incidental to these proceedings.
2. That the wife pay the husband’s costs of and incidental to this Application in a Case.
The wife in an Application in a Case emailed to the Court on 9 May 2011 and filed in Court on 1 July 2011, the wife sought the following orders:
1. That the husband’s Application in a Case served 9 May 2011 be dismissed.
2. That…

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 Lenardi and Lenardi (No. 2)

Details

AGLC: Lenardi and Lenardi (No. 2) [2011] FamCA 604
Case: [2011] FamCA 604
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered applications for costs between Mr Lenardi (husband) and Ms Lenardi (wife) following proceedings concerning both parenting and property matters. The husband sought an order that the wife pay his costs, while the wife sought dismissal of the husband's application and an order that the husband pay her costs, including previously reserved costs.

The court was required to determine whether to make a costs order and, if so, against which party and to what extent. This involved considering the provisions of section 117 of the *Family Law Act 1975* (Cth), which governs costs in family law proceedings, and specifically the factors outlined in section 117(2A). These factors include the financial circumstances of the parties, their conduct throughout the proceedings, whether any party was wholly unsuccessful, and any offers to settle.

Collier J noted that costs in parenting and property matters are treated similarly and that an order for costs does not require an exceptional case, but rather circumstances justifying such an order. The court considered the financial circumstances of both parties, observing that the wife had not provided detailed disclosure of her current financial position, despite criticising the husband's. The court found the wife to be in a superior financial position to the husband, both in terms of property and income, despite her payment of child support. The conduct of both parties was also criticised, with findings made against the wife being more significant than those against the husband. Given the wife's more favourable financial circumstances and the conduct of the parties, the court determined that a costs order was justified against the wife.

The court ordered that the wife pay the husband's costs. The parties were to agree in writing on the sum and payment terms within one month. If agreement could not be reached, the wife was to pay the husband 40% of his properly incurred costs and disbursements for the substantive hearing and the costs application, as taxed or assessed on a party/party basis. Payment was to be made within four months of the issue of a certificate of assessment, unless otherwise agreed.

Orders