Luna & Luna (No 5) - [2023] FedCFamC1F 118

FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)
Luna & Luna (No 5) [2023] FedCFamC1F 118

File number(s): BRC 11516 of 2019

Judgment of: HOGAN J

Date of judgment: 3 March 2023

Catchwords: FAMILY LAW – COSTS – Where the Court is not persuaded that the circumstances justify the making of an order that the Respondent pay the Applicant’s costs – Where the Respondent’s costs are reserved

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248; [1993] FCA 801

D & D Costs (No. 2) (2010) FLC 93-435; [2010] FamCAFC 64

In the Marriage of Kohan (1993) FLC 92-340; [1992] FamCA 116

Kite & Kite [2010] FamCAFC 107

KLD & SCVG [2009] FamCAFC 56

Limousin v Limousin (Costs) (2008) 38 Fam LR 478; [2007] FamCA 1178

Rayburn & Pritchard (2014) FLC 93-573; [2014] FamCAFC 13

Yunghanns v Yunghanns (2000) FLC 93-029; [2000] FamCA 681

Division: First Instance

Number of paragraphs: 19

Date of last submission/s: 2 March 2023

Date of hearing: Determined in Chambers following the receipt of written submissions

Place: Brisbane

Solicitor for the Applicant: Feeney Family Law by way of written submissions filed on 27 January 2023 and by way of written submissions in reply filed on 2 March 2023

Solicitor for the Respondent: Alroe Somers & O’Sullivan Solicitors by way of written submissions filed in response on 23 February 2023
ORDERS

BRC 11516 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS LUNA

Applicant

AND:
MR LUNA

Respondent

order made by:

HOGAN J

DATE OF ORDER:

3 MARCH 2023

THE COURT ORDERS THAT:
1.The applicant has leave to rely on the affidavit of Ms Luna sealed at 5.32 pm on 27 January 2023 and the costs (interim) submissions sealed at 5:40 pm on 27 January 2023 notwithstanding the terms of order 3(a) of the order made on 16 December 2022 which required that any affidavit and written submissions relied on in support of an application for costs be filed and served by 4.00 pm on 27 January 2023.
2.The Application in a Proceeding filed at 5:32 pm on 27 January 2023 (and sealed at 9:04 am on 10 February 2023) is dismissed.
3.Save as is ordered above, the Amended Application in a Proceeding sealed on 17 February 2023 is dismissed.
4.The respondent’s costs of and incidental to the Application in a Proceeding filed 20 October 2022 (sealed on 31 October 2022) are reserved.
5.Save as is ordered above, the Response to Application in a Proceeding filed and sealed on 23 February 2023 is dismissed.

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…

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 Luna & Luna (No 5)

Details

AGLC: Luna & Luna (No 5) [2023] FedCFamC1F 118
Case: [2023] FedCFamC1F 118
Decision Date

CaseChat Overview and Summary

In Luna & Luna (No 5), the applicant, Ms. Luna, and the respondent, Mr. Luna, were before the Federal Circuit and Family Court of Australia (Division 1). The dispute revolved around an application for costs in relation to a proceeding filed on 20 October 2022, and the court was required to decide whether the respondent should pay the applicant's costs and, if so, on what basis.

The court considered the relevant legal principles under the Family Law Act 1975 (Cth), which provides that each party bears their own costs, but the court may make an order as to costs if it is satisfied that the circumstances justify it. The court considered the factors outlined in section 117(2A) of the Act, including the financial circumstances of the parties, the success of the parties, and any offers to settle the proceedings. The court also considered relevant case law on costs orders and the principles of indemnity costs.

The court ultimately decided that the circumstances did not justify making an order for the respondent to pay the applicant's costs, and the financial disparity between the parties did not warrant an indemnity costs order. The court found that the applicant was not wholly successful in her application for security for costs, as the amount ordered was significantly less than that which was sought. The court also found that the respondent's conduct did not amount to exceptional circumstances that would justify an indemnity costs order. The court, therefore, dismissed the applicant's application for costs and reserved the respondent's costs of and incidental to the proceeding. The court also granted the applicant leave to rely on her affidavit and written submissions in support of her costs application, despite the late filing of the same.

Orders