Mavrotis & Mavrotis - [2022] FedCFamC1F 959

Federal Circuit and Family Court of Australia
(DIVISION 1)
Mavrotis & Mavrotis [2022] FedCFamC1F 959

File number: MLC 2810 of 2018

Judgment of: CARTER J

Date of judgment: 7 December 2022

Catchwords: FAMILY LAW – COSTS – where the wife sought indemnity costs – consideration of factors in s 117 of the Family Law Act 1975 (Cth) – where the husband sought to rely on affidavits from unilaterally appointed experts – non-compliance with Chapter 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – costs ordered in a fixed sum.

Legislation:
Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17

Cases cited:
Colgate-Palmolive Company & Cussons Pty Limited [1993] FCA 801

D & D (Costs) (No. 2) [2010] FamCAFC 64

Kohan & Kohan [1992] FamCA 116

Limousin & Limousin (Costs) [2007] FamCA 1178

Munday & Bowman (1997) FLC 92-784

Division: Division 1 First Instance

Number of paragraphs: 25

Date of hearing: 1 December 2022

Place: Melbourne

Counsel for the Applicant: Mr John Salamanca

Solicitor for the Applicant Madison Branson Lawyers

Counsel for the First Respondent: Mr Laurence Fudim

Solicitor for the First Respondent Klonis Kirby & Co

Counsel for the Second, Third and Fourth Respondents: Mr Antonio Scriva
ORDERS

MLC 2810 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MAVROTIS

Applicant

AND:
MR J MAVROTIS

First Respondent

MR K MAVROTIS
Second Respondent

MR L MAVROTIS
Third Respondent

order made by:

CARTER J

DATE OF ORDER:

6 DECEMBER 2022

THE COURT ORDERS THAT:
1.The husband pay the wife’s costs of $5,500 within 30 days.

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 the pseudonym Mavrotis & Mavrotis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER

The applicant wife seeks an order for costs against the first respondent husband, in relation to an interim hearing that took place on 1 December 2022. The hearing that day dealt with a number of matters including:
(a)the joinder of the fifth and sixth respondent to the proceedings. That application was brought by the first respondent husband. It was ultimately not opposed by the applicant wife, or the other respondents. An order was made for the joinder of those additional parties…

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 Mavrotis & Mavrotis

Details

AGLC: Mavrotis & Mavrotis [2022] FedCFamC1F 959
Case: [2022] FedCFamC1F 959
Decision Date: 7 December 2022

CaseChat Overview and Summary

The matter before the Family Court involved a dispute between the husband and wife over costs following a property settlement. The wife had applied for indemnity costs following the proceedings, while the husband sought to rely on affidavits from experts he had appointed without the court's involvement. The court was required to consider the factors outlined in section 117 of the Family Law Act 1975 (Cth) to determine whether the wife was entitled to indemnity costs and whether the husband's use of unilaterally appointed experts complied with Chapter 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

The court found that the husband's reliance on the affidavits from experts he had appointed was non-compliant with the rules, as they had not been jointly appointed by the parties. The court held that the husband's failure to comply with the rules was a factor that should be taken into account when determining whether the wife was entitled to indemnity costs. The court also considered other factors outlined in section 117, including the conduct of the parties and the outcome of the proceedings. Ultimately, the court found that the wife was entitled to indemnity costs, but not in the full amount she had sought.

The court ordered that the husband pay the wife's costs of $5,500 within 30 days. The court emphasised the importance of complying with court rules and the potential consequences of failing to do so. The court also highlighted the need for parties to act in a manner that is conducive to the efficient and effective resolution of family law disputes. This decision serves as a reminder to parties and their legal representatives of the importance of following court rules and acting in a manner that promotes the just resolution of family law disputes.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The husband pay the wife’s costs of $5,500 within 30 days.

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

MR J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MR J

Full text does not contain this section.

File number:	MLC 2810 of 2018
Judgment of:	CARTER J
Date of judgment:	7 December 2022
Catchwords:	FAMILY LAW – COSTS – where the wife sought indemnity costs – consideration of factors in s 117 of the Family Law Act 1975 (Cth) – where the husband sought to rely on affidavits from unilaterally appointed experts – non-compliance with Chapter 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – costs ordered in a fixed sum.
Legislation:	Family Law Act 1975 (Cth) s 117 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited:	Colgate-Palmolive Company & Cussons Pty Limited [1993] FCA 801 D & D (Costs) (No. 2) [2010] FamCAFC 64 Kohan & Kohan [1992] FamCA 116 Limousin & Limousin (Costs) [2007] FamCA 1178 Munday & Bowman (1997) FLC 92-784
Division:	Division 1 First Instance
Number of paragraphs:	25
Date of hearing:	1 December 2022
Place:	Melbourne
Counsel for the Applicant:	Mr John Salamanca
Solicitor for the Applicant	Madison Branson Lawyers
Counsel for the First Respondent:	Mr Laurence Fudim
Solicitor for the First Respondent	Klonis Kirby & Co
Counsel for the Second, Third and Fourth Respondents:	Mr Antonio Scriva

MLC 2810 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS MAVROTIS Applicant
AND:	MR J MAVROTIS First Respondent MR K MAVROTIS Second Respondent MR L MAVROTIS Third Respondent

order made by:	CARTER J
DATE OF ORDER:	6 DECEMBER 2022