Piovene & Muhlfeld (No 4) - [2024] FedCFamC1F 733

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Piovene & Muhlfeld (No 4) [2024] FedCFamC1F 733

File number: SYC 4211 of 2023

Judgment of: SCHONELL J

Date of judgment: 5 November 2024

Catchwords: FAMILY LAW – COSTS – Where the respondent sought a costs order against the applicant – Where the applicant was wholly unsuccessful – Where the respondent sought costs against the applicant on an indemnity basis or alternatively costs in accordance with scale – Consideration of factors under s 117(2A) of the Family Law Act 1975 (Cth) – Where the Court is satisfied there are exceptional circumstances warranting indemnity costs – Costs ordered on an indemnity basis.

Legislation: Family Law Act 1975 (Cth) s 117

Cases cited:
Ananda Marga Pracaraka Samgha Ltd v Tomar (No 7) (2013) FCA 863

Colgate Palmolive Company & Anor v Cusson Pty Ltd (1993) 118 ALR 248

Kohan and Kohan (1993) FLC 92-340

Nada v Nettle (Costs) (2014) FLC 93-612

Piovene & Muhlfeld (No 2) [2024] FedCFamC1F 491

Piovene & Muhlfeld (No 3) [2024] FedCFamC1F 614

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Number of paragraphs: 45

Date of last submission/s: 30 October 2024

Date of hearing: 14 October 2024

Place: Sydney

The Applicant: Litigant in person

Counsel for the Respondent: Mr Jones SC

Solicitor for the Respondent: Barkus Doolan Winning
ORDERS

SYC 4211 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR PIOVENE

Applicant

AND:
MS MUHLFELD

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

5 NOVEMBER 2024

THE COURT ORDERS THAT:
1.The applicant pay the respondent’s costs and disbursements of the proceedings on an indemnity basis as and from 19 April 2024.
2.I certify for the attendance of senior counsel.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Piovene & Muhlfeld has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:

On 19 September 2024, the Court made a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) that as between the applicant and respondent a de facto relationship never existed. The reasons for judgment for the declaration…

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 Piovene & Muhlfeld (No 4)

Details

AGLC: Piovene & Muhlfeld (No 4) [2024] FedCFamC1F 733
Case: [2024] FedCFamC1F 733
Decision Date: 5 November 2024

CaseChat Overview and Summary

The case of Piovene & Muhlfeld (No 4) involved Mr Piovene, the applicant, and Ms Muhlfeld, the respondent, in a matter before the Federal Circuit and Family Court of Australia. The primary issue was a request by Ms Muhlfeld for a costs order against Mr Piovene, who was wholly unsuccessful in his application. Ms Muhlfeld sought costs on an indemnity basis or, in the alternative, costs in accordance with the scale. The matter was decided by Justice Schnell, who was required to consider the relevant factors under section 117(2A) of the Family Law Act 1975 (Cth).

Justice Schnell found that the circumstances of the case warranted an indemnity costs order. Several factors led to this conclusion, including the unsuccessful nature of Mr Piovene's application, the complexity of the proceedings, and the conduct of Mr Piovene throughout the litigation. The Court was satisfied that exceptional circumstances existed, justifying the imposition of indemnity costs against Mr Piovene. Consequently, the Court ordered that Mr Piovene pay Ms Muhlfeld's costs and disbursements of the proceedings on an indemnity basis as and from 19 April 2024. The Court also certified for the attendance of senior counsel.

In summary, the Court ordered Mr Piovene to pay Ms Muhlfeld's costs and disbursements on an indemnity basis, reflecting the unsuccessful nature of his application and the exceptional circumstances identified by the Court.

Orders

Orders of the court

SYC 4211 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR PIOVENE

Applicant

AND:

MS MUHLFELD

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

5 NOVEMBER 2024

THE COURT ORDERS THAT:

1. The applicant pay the respondent’s costs and disbursements of the proceedings on an indemnity basis as and from 19 April 2024.

2. I certify for the attendance of senior counsel.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	SYC 4211 of 2023
Judgment of:	SCHONELL J
Date of judgment:	5 November 2024
Catchwords:	FAMILY LAW – COSTS – Where the respondent sought a costs order against the applicant – Where the applicant was wholly unsuccessful – Where the respondent sought costs against the applicant on an indemnity basis or alternatively costs in accordance with scale – Consideration of factors under s 117(2A) of the Family Law Act 1975 (Cth) – Where the Court is satisfied there are exceptional circumstances warranting indemnity costs – Costs ordered on an indemnity basis.
Legislation:	Family Law Act 1975 (Cth) s 117
Cases cited:	Ananda Marga Pracaraka Samgha Ltd v Tomar (No 7) (2013) FCA 863 Colgate Palmolive Company & Anor v Cusson Pty Ltd (1993) 118 ALR 248 Kohan and Kohan (1993) FLC 92-340 Nada v Nettle (Costs) (2014) FLC 93-612 Piovene & Muhlfeld (No 2) [2024] FedCFamC1F 491 Piovene & Muhlfeld (No 3) [2024] FedCFamC1F 614 PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158 Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Number of paragraphs:	45
Date of last submission/s:	30 October 2024
Date of hearing:	14 October 2024
Place:	Sydney
The Applicant:	Litigant in person
Counsel for the Respondent:	Mr Jones SC
Solicitor for the Respondent:	Barkus Doolan Winning

SYC 4211 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR PIOVENE Applicant
AND:	MS MUHLFELD Respondent

ORDER MADE BY:	SCHONELL J
DATE OF ORDER:	5 NOVEMBER 2024