MAGANO & MAGANO

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAGANO & MAGANO [2020] FCCA 1418

Catchwords:
FAMILY LAW – COSTS – Consideration of Indemnity Costs – Applicant father convicted of rape and sexual assault of the Respondent mother – Application filed to intimidate the mother as a witness in criminal proceedings – Application had no prospect of success.  

Legislation:

Family Law Act 1975 (Cth), s.117

Federal Circuit Court Rules 2001, r.13.04A

Cases cited:

Re Collins and the Victorian Legal Aid Commission (1984) FLC 91-508

Colgate Palmolive v Cussons (1993) 118 ALR 248

Preston v Preston [1982] 1 All ER 41

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Others (1988) ALR 398 at 401

Gersten v Minister for Immigration & Multicultural Affairs [2001] FCA 260

Applicant: MR MAGANO

Respondent: MS MAGANO

File Number: BRC 12500 of 2016

Judgment of: Judge Lapthorn

Hearing dates: 11 February 2019 & 28 January 2020

Date of Last Submission: 10 February 2020

Delivered at: Brisbane

Delivered on: 5 June 2020

REPRESENTATION

Solicitors for the Applicant: Davey Law

Solicitors for the Respondent: Corney & Lind Lawyers

ORDERS

1. That on or before 5 June 2021 the Applicant Mr Magano pay the Respondent Ms Magano, costs fixed in the sum of $50,000.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 12500 of 2016

MR MAGANO

Applicant

And

MS MAGANO

Respondent

REASONS FOR JUDGMENT

Introduction

1. I am asked to determine the respondent mother’s application for the applicant father pay her costs on an indemnity basis in relation to the parenting proceedings commenced by him on 20 October 2017.  The father opposes the making of any order for costs.  The parenting proceedings were resolved by way of final consent orders on 12 November 2019 which provided for the children to live with the mother and spend no time with the father and for the paternal grandmother to provide to the father biannual updates about the children received by email from the mother.

2. The parties met and married in 2012.  They have three children, two of whom have special needs. X is seven years of age, Y is six and Z four.  The parties separated on a final basis on 17 November 2015 and were divorced on 9 April 2017.

3. In 2016 the father was charged with four counts of rape, three counts of sexual assault and one count of attempted rape of the mother.  His criminal trial commenced in 2017 and he was found guilty of two counts of rape and one count of sexual assault.  He was sentenced to six years imprisonment but was released on parole in late 2019. 

Procedural background

1. The father commenced the parenting proceedings upon filing his Initiating Application on 20 October 2017 just ten days prior to the commencement of his criminal trial.  In that application he sought orders that would provide, on an interim basis,…