MURGIA & PADAVAN - [2019] FCCA 2090

FEDERAL CIRCUIT COURT OF AUSTRALIA

MURGIA & PADAVAN

[2019] FCCA 2090

Catchwords:
FAMILY LAW – Children’s Matters – Contravention Application – conduct of the maternal grandmother with respect to purported compliance with the family therapy order.

FAMILY LAW – Costs – Matters justifying departure from general proposition that each party shall bear his or her own costs – Matters justifying an order for costs – Where behaviour complained of does not fall within a category of behaviour that is so offensive to and an affront to justice that it must be followed with indemnity costs – justifying circumstances to depart from “general rule” created by s.117(1) and to award party/party costs in accordance with Schedule 1 Federal Circuit Court Rules 2001.

Legislation:

Family Law Act 1975 (Cth), Div 13A, ss.70NCB, 70NDC, 70NEB, 117(2A).

Federal Circuit Court Rules 2001 (Cth), Div 21, Sch 1.

Cases cited:

Re JJT; ex-parte Victorian Legal Aid [1998] HCA 44

Prantage & Prantage [2013] FamCAFC 105

Applicant:

MS MURGIA

Respondent:

MS PADOVAN

File Number:

PAC 161 of 2019

Judgment of:

Judge Harman

Hearing date:

21 May 2019

Date of Last Submission:

21 May 2019

Delivered at:

Parramatta

Delivered on:

21 May 2019

REPRESENTATION

Solicitors for the Applicant:

Ms Seton of Ryan & Seton Lawyers

Solicitors for the Respondents:

Mr El-Hosni of Genuine Legal

ORDERS

The Respondent shall pay to the Applicant, as a contribution towards the Applicant’s costs incurred in these proceedings, the sum of $3,600 such sum to be paid within 28 days and thereafter:
(a)Interest shall accrue upon that sum or such portion of it as remains outstanding from time to time at the rate prescribed by Federal Circuit Court Rules 2001; and
(b)The Applicant shall then be entitled to commence proceedings for recovery of that sum in a court of competent jurisdiction.
Remove all outstanding issues from the list of cases awaiting finalisation.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 161 of 2019

MS MURGIA

Applicant

And

MS PADOVAN

Respondent

REASONS FOR JUDGMENT

These proceedings come before the Court today as the consequence of an Application for Contravention filed 13 March 2019.
Today is the first return date of that Application and the date upon which it might ordinarily be anticipated that the application would be heard.
The Application is not pressed in circumstances whereby the alleged contravention, which would appear, to some extent, to be conceded, are cured. In those circumstances, to not press the Application is an appropriate course to take and an abundantly appropriate forensic decision to be made by the Applicant and the Applicant’s legal representatives.
The proceedings are between Ms Murgia, the biological mother of the child whose interests are the subject of the proceedings, being a young lass, X, who has recently turned 16. The Respondent to the Application is Ms Padovan, who is the child’s maternal grandmother and the…

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 MURGIA & PADAVAN

Details

AGLC: MURGIA & PADAVAN [2019] FCCA 2090
Case: [2019] FCCA 2090
Decision Date: 21 May 2019

CaseChat Overview and Summary

In *Murgia & Padavan*, the Federal Circuit Court of Australia was asked to determine a dispute between the Applicant and the Respondent concerning costs.

The central legal issue before the Court was the appropriate quantum of costs to be awarded to the Applicant, and the terms upon which such costs should be paid.

Judge Harman ordered that the Respondent pay the Applicant a contribution towards costs in the sum of $3,600, to be paid within 28 days. The Court further stipulated that interest would accrue on any outstanding portion of this sum at the rate prescribed by the Federal Circuit Court Rules 2001, and that the Applicant would be entitled to commence proceedings for recovery of the sum if it remained unpaid. All outstanding issues were subsequently removed from the list of cases awaiting finalisation.

Orders

Orders of the court

The Respondent shall pay to the Applicant, as a contribution towards the Applicant’s costs incurred in these proceedings, the sum of $3,600 such sum to be paid within 28 days and thereafter:

(a) Interest shall accrue upon that sum or such portion of it as remains outstanding from time to time at the rate prescribed by Federal Circuit Court Rules 2001; and

(b) The Applicant shall then be entitled to commence proceedings for recovery of that sum in a court of competent jurisdiction.

Remove all outstanding issues from the list of cases awaiting finalisation.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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