FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATINOS & PATINOS | [2019] FCCA 1479 |
| Catchwords: FAMILY LAW – Application for costs following the resolution of property proceedings by consent – basis of Application was that an offer had been made by the Husband after the conciliation conference – Wife legally aided – Wife has sole care of the youngest child of the long relationship – considerations regarding justice and equity – Application dismissed – no Orders as to costs other than each party is to pay his and her own costs. |
| Legislation: Family Law Act 1975, ss.117(1), 117(2A)(a) & (b) |
| Cases cited: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 |
| Applicant: | MR PATINOS |
| Respondent: | MS PATINOS |
| File Number: | CAC 96 of 2017 |
| Judgment of: | Judge Neville |
| Hearing date: | Written Submissions |
| Date of Last Submission: | 26 March 2019 |
| Delivered at: | Canberra |
| Delivered on: | 31 May 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Farrar Gesini Dunn |
| Solicitors for the Respondent: | Legal Aid NSW |
ORDERS
The Respondent Husband’s Application in a Case, filed on 21st December 2018, and the Applicant Wife’s Response to the Husband’s Application in a Case filed on 1st March 2019, be dismissed.
The parties are to bear their own costs of, and incidental to, these proceedings.
All extant Applications be dismissed, the matter is now finalised and will be removed immediately from the docket.
IT IS NOTED that publication of this judgment under the pseudonym Patinos & Patinos is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 96 of 2017
| MR PATINOS |
Applicant
And
| MS PATINOS |
Respondent
REASONS FOR JUDGMENT
Introduction
This property matter was resolved on 30th November 2018 pursuant to terms of settlement being entered into by the parties and Orders being made in consequence of them.
In general terms, the property pool was quite modest. The relationship between the parties, which began when the Applicant Wife was aged 16 years and the Respondent Husband was aged 21 years, was approximately 21 years duration. There were 3 children of the relationship.
For part of the parties’ relationship, the Wife was the Husband’s carer. The parties are now aged, 42 and 46 years respectively. The Wife is an Aboriginal woman from the … people.
The Wife’s sole income is from Centrelink benefits, as is the Husband’s. He receives a Newstart allowance. The Wife has the sole care of the parties’ third child (aged almost 14 years). That child spends no time with the Husband. The elder two children are both over 18 years.
Due to various medical conditions, which I need not detail here, the Husband has little or no capacity to work. He has a very young child (aged approximately just over 1 year) with his new partner.
The principal asset of the relationship was a house (“the Property A property”) which was purchased for $260,000.
In the Wife’s Initiating Application,…
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- AGLC
- Patinos and Patinos [2019] FCCA 1479
- Case
- [2019] FCCA 1479
- Decision Date
CaseChat Overview and Summary
The Court was required to determine whether to depart from the usual rule that parties bear their own costs in family law proceedings, particularly in light of the Wife's legal aid status and the Husband's offer to compromise. The Court considered the principles governing the award of costs, including the general rule that costs are awarded on a party and party basis, and the exceptional circumstances required to justify an order for indemnity costs.
Judge Neville referred to the principles outlined in *Colgate-Palmolive Co v Cussons Pty Ltd*, which establish that costs orders are generally made on a party and party basis unless the circumstances warrant a departure. While an imprudent refusal of an offer to compromise can be a factor justifying a departure, the Court found that the specific circumstances of this case did not warrant such a departure. The Court noted that the Wife was legally aided and that the Husband's offer, while made, did not meet the threshold for an indemnity costs order given the overall context of the proceedings and the need for justice and equity.
Consequently, the Court dismissed the Husband's application and the Wife's response thereto. The final orders stipulated that each party was to bear their own costs of, and incidental to, the proceedings, and all extant applications were dismissed, finalising the matter.
Orders
Orders of the court
1.
The Respondent Husband’s Application in a Case, filed on 21st December 2018, and the Applicant Wife’s Response to the Husband’s Application in a Case filed on 1st March 2019, be dismissed.
2.
The parties are to bear their own costs of, and incidental to, these proceedings.
3.
All extant Applications be dismissed, the matter is now finalised and will be removed immediately from the docket.
Background
Background to the litigation
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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