PEREZ & MOLINA - [2021] FCCA 87

FEDERAL CIRCUIT COURT OF AUSTRALIA

PEREZ & MOLINA

[2021] FCCA 87

Catchwords:
FAMILY LAW – Application for costs in respect of a discontinued application for divorce – respondent put to significant expense – costs awarded.

Legislation:

Family Law Act 1975 (Cth), s.117

Federal Circuit Court Rules 2001 (Cth), r.21.02(2)

Cases cited:

Colgate Palmolive Co and Anor v Cussons Pty Ltd [1993] FCA 801

Latoudis v Casey [1990] HCA 59

Penfold & Penfold [1980] HCA 4

Sala & Habner (No. 2) [2018] FCCA 2738

Applicant:

MS PEREZ

Respondent:

MR MOLINA

File Number:

PAC 2394 of 2018

Judgment of:

Judge Obradovic

Hearing date:

26 November 2020

Date of Last Submission:

26 November 2020

Delivered at:

Parramatta

Delivered on:

27 January 2021

REPRESENTATION

Appearing for the Applicant:

Mr Lee

Solicitors for the Applicant:

Harper James Law Group

Appearing for the Respondent:

Ms Nichelsen

Solicitors for the Respondent:

Sarah Bevan Family Lawyers

ORDERS

That within 42 days the Wife pay the Husband’s costs in the amount of $22,780.51.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2394 of 2018

MS PEREZ

Applicant

And

MR MOLINA

Respondent

REASONS FOR JUDGMENT

Introduction

These are Reasons for Judgment in relation to an application for costs filed by the husband, Mr Molina on 13 July 2020.
On 29 May 2018, the wife, Ms Perez filed an Application for Divorce. The husband filed a Response to Divorce on 28 August 2018. The application ultimately was discontinued by the wife on 25 October 2019 after the matter had been on foot for over 12 months.

Factual Findings

The parties were married 2007. Together they have two children, who were born in 2006 and 2010 respectively.
In January 2014, the parties and their children migrated to Country A.
In December 2014, the husband commenced family law proceedings in Country A, those documents being served on the wife in or around January or February 2015. Orders were made temporarily restraining the children from leaving Country A.
On 3 March 2015, the parties entered into consent orders with respect to parenting, approved by a Judge of Court B of Country A.
In December 2016, the husband filed for a divorce in Country A.
In February 2017, the wife filed an application in Country A seeking approval to travel to Australia with the children without the consent of the husband. The wife was unsuccessful in this application and a further order was made again temporarily restraining the children from departing Country A.
The Country A parenting proceedings were set down for interim hearing on 2 May 2017 and judgment was delivered in respect of that hearing on 27 October 2017 dismissing the request to lift the departure prohibition order for the children. Prior to the delivery of that judgement, the wife left Country A on or about 24 May 2017 to return to Australia, and has remained here…

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 PEREZ & MOLINA

Details

AGLC: PEREZ & MOLINA [2021] FCCA 87
Case: [2021] FCCA 87
Decision Date: 27 January 2021

CaseChat Overview and Summary

In the matter of *Perez & Molina*, heard before Judge Obradovic, the dispute concerned an application for costs following the discontinuance of an application for divorce. The respondent husband had incurred significant expense as a result of the wife's discontinued application.

The central legal issue before the court was whether the respondent husband was entitled to an award of costs in relation to the discontinued divorce proceedings, and if so, the quantum of those costs.

Judge Obradovic reasoned that the wife's discontinuance of the divorce application had caused the husband to incur substantial costs. Applying the general principle that costs follow the event, and considering the circumstances of the case, the court determined that an order for costs was appropriate. The court ordered that the wife pay the husband's costs in the amount of $22,780.51 within 42 days.

Orders

Orders of the court

That within 42 days the Wife pay the Husband’s costs in the amount of $22,780.51.

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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