FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Morishita & Vartanian (No 2) [2024] FedCFamC1F 618
File number(s): CAC 1369 of 2021 Judgment of: GILL J Date of judgment: 17 September 2024 Catchwords: FAMILY LAW – COSTS – Where the mother sought costs as agreed or as assessed until an offer of settlement was made and then on an indemnity basis at a fixed sum until delivery of the substantive judgment – Where the father pursued an unmeritorious case and correctly concedes he was wholly unsuccessful in relation to parenting matters – Where the father’s testing of the mother’s parenting position was still warranted – Where the father’s non-disclosure meant the mother was not fully aware of his financial circumstances when negotiating settlement – Where the mother made multiple offers better than the final outcome which the father did not respond to – Father to pay the mother’s costs on a party-party basis from the commencement of proceedings until the delivery of the substantive judgment Legislation: Family Law Act 1975 (Cth) – s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited: Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248
Hawkins & Roe [2012] FamCAFC 77
Higginbotham & Robinson (1991) FLC 92-209
In the Marriage of W P J Munday and H J Bowman (1997) 22 Fam LR 321
Kohan & Kohan (1993) FLC 92-340
Lenova v Lenova (Costs) [2011] FamCAFC 141
Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664
Orioli v Oriolo [1985] FamCA 54
Penfold v Penfold (1980) 144 CLR 311
Quickley & Pelissier [2016] FamCAFC 124
Roydon & Roydon [2023] FedCFamC2F 1265
Division: Division 1 First Instance Number of paragraphs: 90 Date of hearing: 6 August 2024 Place: Heard in Canberra, delivered in Sydney Counsel for the Applicant: Ms Tonkin Solicitor for the Applicant: Neilan Stramandinoli Family Law Solicitor for the Respondent: Mr Lee, Gabbedy Milson Lee ORDERS
CAC 1369 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VARTANIAN
Applicant
AND: MR MORISHITA
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
17 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The respondent father pay the applicant mother’s costs of, and incidental to, the substantive proceedings from the commencement of the proceedings initiated by the father on 28 June 2021 up to and including the delivery of the substantive judgment in these proceedings on a party and party basis as agreed or as assessed.
2.The costs be paid to the mother by the father within 14 days of the total sum being determined, into a bank account nominated in writing by the mother.
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…
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- Case
- [2024] FedCFamC1F 618
- Decision Date
CaseChat Overview and Summary
The court considered the nature of the father's conduct, including his unmeritorious case and the lack of disclosure, but concluded that these factors did not reach the level of extremity required for an indemnity order. The court noted that even though the father's actions were imprudent, they did not warrant more than party and party costs. The court also acknowledged the mother's multiple offers that the father did not respond to, and his overall lack of success in the parenting matters. Despite these considerations, the court held that the father's testing of the mother's parenting position was still warranted and did not justify indemnity costs.
Following its reasoning, the court ordered the father to pay the mother's costs on a party and party basis from the commencement of the proceedings up until the delivery of the substantive judgment. The court emphasised that the father's defaults in relation to disclosure and his unmeritorious case, while significant, did not elevate the situation to the level necessary for an indemnity order. The court also noted the mother's multiple offers which the father failed to accept, and the father's overall lack of success in the parenting matters. However, these factors were not deemed sufficient to warrant indemnity costs. The court's decision balanced the need for accountability with the principle that not all imprudent actions warrant the most severe financial penalties. The court's final orders reflect this balance, with the father to pay the mother's costs on a party and party basis.
Orders
Orders of the court
CAC 1369 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS VARTANIAN
Applicant
AND:
MR MORISHITA
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
17 SEPTEMBER 2024
THE COURT ORDERS THAT:
1. The respondent father pay the applicant mother’s costs of, and incidental to, the substantive proceedings from the commencement of the proceedings initiated by the father on 28 June 2021 up to and including the delivery of the substantive judgment in these proceedings on a party and party basis as agreed or as assessed.
2. The costs be paid to the mother by the father within 14 days of the total sum being determined, into a bank account nominated in writing by the mother.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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