Pacetti & Dambrose - [2022] FedCFamC1F 497

Federal Circuit and Family Court ofAustralia
(DIVISION 1)
Pacetti & Dambrose [2022] FedCFamC1F 497

File number(s): PAC 2061 of 2018

Judgment of: HANNAM J

Date of judgment: 14 July 2022

Catchwords: FAMILY LAW – COSTS – Where father seeks an order that mother pay his costs arising from Contravention proceedings initiated by her – Where mother had filed a series of Contravention applications which were each summarily dismissed by the Court – Where the mother’s mental health and functioning is a weighty matter in determining the father’s costs application relating to the Contravention proceedings – Where father also seeks an order that he be awarded costs for the costs application - Where in the circumstances the Court considers this second costs application may be procedurally unfair to the mother – Where Court not satisfied that there is sufficient justification to depart from the usual rule that each party bears their own costs - Orders made that father’s costs application be dismissed.

Legislation: Family Law Act 1975 (Cth) ss 70NCB, 117

Cases cited:
Earle & Earle [2022] FedCFamC1F 16

Pacetti & Dambrose (No 3) [2021] FCCA 862

Penfold v Penfold (1980) 144 CLR 311

Division: Division 1 First Instance

Number of paragraphs: 83

Date of last submission/s: 8 December 2021

Date of hearing: In chambers on receipt of written submissions

Place: Parramatta

Counsel for the Applicant Mr Liedermann

Solicitor for the Applicant Edwards Kirby Lawyers

Solicitor for the Respondent Litigant in person
ORDERS

PAC 2061 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR PACETTI
Applicant

AND:
MS DAMBROSE
Respondent

order made by:

HANNAM J

DATE OF ORDER:

14 july 2022

THE COURT ORDERS THAT:
1.The father’s application that the mother pay his costs arising from Contravention proceedings initiated by her and costs incurred by him in relation to the present costs application made to the Court 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 the pseudonym Pacetti & Dambrose has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
introduction

An applicant father in parenting proceedings concerning a young girl aged five seeks an order that the respondent mother pay his costs arising from contravention proceedings initiated by the mother.
The mother filed three Contravention applications in April and June 2021 (“the mother’s Contravention…

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 Pacetti & Dambrose

Details

AGLC: Pacetti & Dambrose [2022] FedCFamC1F 497
Case: [2022] FedCFamC1F 497
Decision Date

CaseChat Overview and Summary

In the matter of Pacetti & Dambrose, the Federal Circuit and Family Court of Australia was called upon to decide whether the father should be awarded costs for the proceedings brought by the mother, which were subsequently dismissed. The case involved highly contentious parenting proceedings between the mother and the father concerning their five-year-old daughter, which had been ongoing since 2018. The father had initially filed proceedings in the Federal Circuit Court in May 2018, following the separation of the parties. The mother had been the subject of an Apprehended Violence Order made for the father's protection. The initial proceedings were concluded in August 2020, with orders for equal shared parental responsibility and a gradual increase in the child's time with the mother, supervised for six months. In November 2020, the mother failed to return the child to the father as per the court orders, prompting the father to file urgent proceedings for the recovery of the child. The father also initiated new proceedings for parenting orders. The mother subsequently sought interim orders for the child to live with her and for limited supervised contact with the father. The father argued that the mother posed a risk to the child due to her unstable mental health and potential plans to remove the child from Australia. The mother also sought an order for the child to have no contact with the paternal grandmother until she underwent psychiatric evaluation and treatment.

The legal issues before the court were whether the father could be awarded costs for the dismissed proceedings initiated by the mother and whether the mother should be ordered to pay the father's costs for the contravention proceedings. The father argued that the circumstances justifying an award of costs for the contravention proceedings should also apply to the dismissed proceedings. However, the court noted that the father had not properly notified the mother of this application, potentially denying her procedural fairness. The court also considered the mother's mental health and functioning, which weighed against departing from the usual rule that each party bears their own costs.

The court ultimately determined that there was insufficient justification to depart from the usual rule of each party bearing their own costs. Concerns about the mother's mental health and the lack of proper notice to her regarding the application for costs in the dismissed proceedings led the court to conclude that it would not be fair to award costs to the father in either set of proceedings. The court dismissed the father's application that the mother pay his costs.

Orders

Orders of the court

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Background

Background to the litigation

The question for me to determine is whether there are circumstances that justify departing from the usual rule that each party shall bear his or her own costs in relation to the Contravention proceedings. BACKGROUND The parties (“the mother” and “the father”) have been involved in highly acrimonious parenting proceedings concerning the future parenting of their five year old daughter (“the child”) since 2018. The first tranche of litigation was commenced by the father in the Federal Circuit Court (as it was then known) in May 2018 about a month after the parties separated. At the time, a final Apprehended Violence Order had been recently made against the mother for the father’s protection. The parenting proceedings initiated in 2018 resolved by way of final orders made in August 2020 (“the August 2020 final orders”) providing that the parties equally share parental responsibility for the child and that the child live with father and spend gradually increasing time with mother with changeover to be initially supervised for a period of six months. In the ensuing months the father facilitated the child’s time with the mother pursuant to court orders but on several occasions the mother did not return the child to him at the time provided for in the orders. One such occasion was in November 2020 when the mother withheld the child from the father resulting in the father filing an urgent application in the Federal Circuit Court for the recovery of the child. With the filing of this application the father also initiated the current proceedings for new parenting orders. A recovery order was issued for the child on 23 November 2020 and the child was returned to the father where she has continued to live since that time. Following the making of the recovery order, the mother sought interim orders that the child live with her and spend supervised time with the father. She also sought an order that the child have no contact with the paternal grandmother (who shares a household with the father) until such time the paternal grandmother seeks “psychiatric evaluation and treatment”. It has generally been the father’s case from the outset of the current parenting proceedings that the mother poses a risk of harm to the child on the basis that the mother’s mental health is unstable and that there is a real risk that she will undermine the child’s relationship with him. He also has continued to maintain that there is a real risk that the mother (who is a foreign national and whose immigration status is unclear) may remove the child from Australia. In early December 2020 the father filed a Response to the mother’s application seeking interim orders that he hold sole responsibility for the child and that the child’s time with the mother be limited to six hours each Sunday supervised at a contact centre. On 4 December 2020 interim orders were made with the consent of the parties providing that the recovery order made for the child remain operative for 12 months. The father also agreed to an order that he ensure that the paternal grandmother does not physically chastise the child. Later that month, an ICL was appointed to the proceedings.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

According to written submissions made on his behalf, the father relies on the same circumstances argued in relation to the Contravention proceedings to justify an order that he also be awarded costs for the application under consideration. However, as noted earlier, such an order was not sought by the father at the summary dismissal hearing on 24 November 2021 and instead included in his Minute of Order attached to written submissions in relation to his application for costs arising from the Contravention proceedings. In the absence of proper notice given to the mother, I consider that determining this aspect of the father’s application when she has not been given an opportunity to respond to that application, may be a failure to afford the mother procedural fairness.CONCLUSION Having regard to all of the foregoing matters, and attaching particular weight to concerns surrounding the mother’s mental health and functioning, I am of the view that there is insufficient justification to depart from the usual rule that each party bears their own costs. Accordingly, the father’s application that the mother pay his costs is dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	PAC 2061 of 2018
Judgment of:	HANNAM J
Date of judgment:	14 July 2022
Catchwords:	FAMILY LAW – COSTS – Where father seeks an order that mother pay his costs arising from Contravention proceedings initiated by her – Where mother had filed a series of Contravention applications which were each summarily dismissed by the Court – Where the mother’s mental health and functioning is a weighty matter in determining the father’s costs application relating to the Contravention proceedings – Where father also seeks an order that he be awarded costs for the costs application - Where in the circumstances the Court considers this second costs application may be procedurally unfair to the mother – Where Court not satisfied that there is sufficient justification to depart from the usual rule that each party bears their own costs - Orders made that father’s costs application be dismissed.
Legislation:	Family Law Act 1975 (Cth) ss 70NCB, 117
Cases cited:	Earle & Earle [2022] FedCFamC1F 16 Pacetti & Dambrose (No 3) [2021] FCCA 862 Penfold v Penfold (1980) 144 CLR 311
Division:	Division 1 First Instance
Number of paragraphs:	83
Date of last submission/s:	8 December 2021
Date of hearing:	In chambers on receipt of written submissions
Place:	Parramatta
Counsel for the Applicant	Mr Liedermann
Solicitor for the Applicant	Edwards Kirby Lawyers
Solicitor for the Respondent	Litigant in person

PAC 2061 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR PACETTI Applicant
AND:	MS DAMBROSE Respondent

order made by:	HANNAM J
DATE OF ORDER:	14 july 2022