Paolo & Malena (No 2) - [2022] FedCFamC2F 1467

Federal Circuit and Family Court of Australia
(DIVISION 2)
Paolo & Malena (No 2) [2022] FedCFamC2F 1467

File number(s): CAC 432 of 2018

Judgment of: JUDGE W J NEVILLE

Date of judgment: 2 November 2022

Catchwords: FAMILY LAW – Parenting – application for costs filed after delivery of final judgment – where the Father seeks the Mother pay his costs of the final hearing in the fixed sum of $60,000 – where the conduct of the Mother throughout the proceedings is considered – where the Orders sought by the Father in the substantive proceedings were found to be in the best interest of the children – where the Mother has not complied with Court directions or Orders – exceptional circumstances where the Mother was wholly unsuccessful and her conduct as a litigant make it appropriate to order costs in the sum of $28,000.

Legislation: Family Law Act 1975 (Cth) s 117(1), (2) & (2A)(a) – (g)

Cases cited:
Paolo & Malena [2022] FedCFamC2F 81

Stephens v Stephens (2011) 44 Fam LR 117

Wrenstead & Eades (2016) FLC-697

Division: Division 2 Family Law

Number of paragraphs: 19

Date of last submission/s: 9 August 2022

Date of hearing: In Chambers on the papers

Place: Canberra

Solicitor for the Applicant Neilan Stramandinoli Family Law

Solicitor for the Respondent Self-represented

ORDERS

CAC 432 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR PAOLO
Applicant

AND:
MS MALENA
Respondent

order made by:

JUDGE W J NEVILLE

DATE OF ORDER:

2 November 2022

ON A FINAL BASIS, THE COURT ORDERS THAT:
1.Pursuant to Section 117(2) of the Family Law Act 1975 (Cth), the Respondent pay the Applicant’s costs of, and incidental to, the Final Hearing in the substantive proceedings, fixed in the sum of $28,000.00 by no later than 31^st January 2023.

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 Paolo & Malena (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction

This is a long running parenting and property matter. The property aspect settled by consent in December 2019. Following a Final Hearing in April 2021, Final Orders in relation to the parenting aspect were pronounced with reasons on 3^rd February 2022.[1]
[1] Paolo & Malena [2022] FedCFamC2F 81.

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 Paolo & Malena (No 2)

Details

AGLC: Paolo & Malena (No 2) [2022] FedCFamC2F 1467
Case: [2022] FedCFamC2F 1467
Decision Date

CaseChat Overview and Summary

This case involved a parenting dispute between the parties, who were the parents of two children. The Father sought an Order for the Mother to pay his costs of the Final Hearing in the fixed sum of $60,000. The Court considered a number of factors, including the financial circumstances of the parties, the conduct of the parties as litigants, and the success of the parties in the substantive proceedings. The Mother was wholly unsuccessful in the substantive proceedings and made extreme allegations of violence against the Father, which were contradicted by independent evidence and ultimately rejected by the Court. The Mother has not complied with most Orders or Court directions since the delivery of the primary judgment. The Court concluded that the Mother’s conduct as a litigant, in the light of the principles set out above, and the history of this litigation, warranted a cost Order being made in the Father’s favour. However, the Court considered that a more modest amount of $28,000, being just under half of the costs sought by the Father, was an appropriate amount in the circumstances. The Court ordered that the Mother pay the Father’s costs of the Final Hearing in the fixed sum of $28,000 by no later than 31st January 2023.

Orders