Marcos & Serina (No 2) - [2024] FedCFamC2F 373

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Marcos & Serina (No 2) [2024] FedCFamC2F 373

File number(s): MLC 11351 of 2020

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 28 February 2024

Catchwords: FAMILY LAW – application for costs – respondent “beat” offer in writing in property case – disparity of financial circumstances – weight to be given to offer in writing – “text book” affidavit and application and clear evidence of costs in complex case – policy difference as the different costs rules – application for costs dismissed

Legislation:
Family Law Act 1975 section 4AA, section 90SF, section 90SM and section 117

Federal Circuit and Family Court of Australia (Family Law) Rules

Cases cited:
Browne & Green [2002] FLC 93-115

Cutts & Head [1984] Ch 290

Calderbank [1975] 3 All ER 333

Marcos & Serina [2023] FedCFamC2F 1474

Murray & Murray [1990] FLC 92-173

Stanford v Stanford [2012] HCA 52; (2012) FLC 93-518

Division: Division 2 Family Law

Number of paragraphs: 64

Date of last submission/s: 21 February 2024

Date of hearing: 21 February 2024

Place: Melbourne

Solicitor for the Applicant: Mr Dunlop of Lander & Rogers

The Respondent: Litigant in person
ORDERS

MLC 11351 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR SERINA

Applicant

AND:
MS MARCOS

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

28 FEBRUARY 2024

THE COURT ORDERS THAT:
1.The application for costs by the de facto Husband, Mr Serina, be and 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 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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT

These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations and passages of authorities, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
In the matter of Marcos & Serina I am required to determine Mr Serina’s application for costs following a trial before me over 10 and 11 March 2022. On 17 November 2023, I delivered my orders and reasons. In those orders and reasons, I dismissed the applicant de facto wife’s application for property settlement pursuant to sections 90SM…

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 Marcos & Serina (No 2)

Details

AGLC: Marcos & Serina (No 2) [2024] FedCFamC2F 373
Case: [2024] FedCFamC2F 373
Decision Date: 28 February 2024

CaseChat Overview and Summary

The case of Marcos & Serina (No 2) involves an application for costs by Mr Serina, the de facto husband, against Ms Marcos, the respondent, following a property settlement dispute. The matter was heard in Division 2 of the Federal Circuit and Family Court of Australia. The primary focus of the case was on the appropriate allocation of costs in a complex property settlement case where the respondent had effectively "beaten" an offer in writing but the financial circumstances of the parties were significantly disparate.

The court was tasked with determining the weight to be given to the offer in writing and the extent to which the disparity in financial circumstances should influence the decision on costs. The applicant argued that the respondent's acceptance of the offer in writing should result in costs being awarded in her favour. However, the respondent contended that despite having accepted the offer, the significant financial disparity warranted a different outcome. The court had to balance these considerations against the policy differences inherent in the different costs rules applicable in family law proceedings.

In dismissing the application for costs, Judge O'SHANNESSY emphasised the "textbook" nature of the affidavit and application, along with the clear evidence of costs in the complex case. The court found that while the offer in writing was a significant factor, the disparity in financial circumstances and the overall context of the case led to the conclusion that awarding costs to the applicant was not appropriate. The court's decision highlighted the nuanced approach required in allocating costs in family law matters, particularly when there is a significant financial disparity between the parties.

Orders

Orders of the court

MLC 11351 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR SERINA

Applicant

AND:

MS MARCOS

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

28 FEBRUARY 2024

THE COURT ORDERS THAT:

1. The application for costs by the de facto Husband, Mr Serina, be and 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 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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	MLC 11351 of 2020
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	28 February 2024
Catchwords:	FAMILY LAW – application for costs – respondent “beat” offer in writing in property case – disparity of financial circumstances – weight to be given to offer in writing – “text book” affidavit and application and clear evidence of costs in complex case – policy difference as the different costs rules – application for costs dismissed
Legislation:	Family Law Act 1975 section 4AA, section 90SF, section 90SM and section 117 Federal Circuit and Family Court of Australia (Family Law) Rules
Cases cited:	Browne & Green [2002] FLC 93-115 Cutts & Head [1984] Ch 290 Calderbank [1975] 3 All ER 333 Marcos & Serina [2023] FedCFamC2F 1474 Murray & Murray [1990] FLC 92-173 Stanford v Stanford [2012] HCA 52; (2012) FLC 93-518
Division:	Division 2 Family Law
Number of paragraphs:	64
Date of last submission/s:	21 February 2024
Date of hearing:	21 February 2024
Place:	Melbourne
Solicitor for the Applicant:	Mr Dunlop of Lander & Rogers
The Respondent:	Litigant in person

MLC 11351 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR SERINA Applicant
AND:	MS MARCOS Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	28 FEBRUARY 2024