Sabado & Sabado - [2021] FamCA 137

FAMILY COURT OF AUSTRALIA
Sabado & Sabado [2021] FamCA 137

File number(s): PAC 5549 of 2018

Judgment of: FOSTER J

Date of judgment: 24 March 2021

Catchwords: FAMILY LAW – COSTS – where application for costs arising from a Response of the first respondent husband in so far as it sought orders as against the second respondent and where such Response was dismissed – where consideration of applicable principles – where order made for husband to pay the second respondent’s costs in fixed sum.

Legislation:
Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) rr 19.08(3), 19.18(1)

Cases cited:
Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160

Collins and Collins (1985) FLC 91-603

Greedy and Greedy (1982) FLC 91-250

Hawkins & Roe [2012] FamCAFC 77

Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23

Luadaka v Luadaka (1998) FLC 92-830

Parke & the Estate of the Late A Parke (2016) FLC 93-748

Penfold v Penfold (1980) 144 CLR 311

Sabado & Sabado and Anor [2019] FamCA 425

Number of paragraphs: 28

Date of last submission/s: 1 March 2021

Date of hearing: 20 January 2021

Place: Suburb F

Solicitor for the Applicant: Forshaw Lawyers

Counsel for the First Respondent: Mr Milanovic

Solicitor for the First Respondent: Prestige Solicitors & Associates

Counsel for the Second Respondent: Mr Fermanis

Solicitor for the Second Respondent: Phillip A Wilkins & Associates

Solicitor for the Independent Children's Lawyer: Sydney West Family Lawyers
ORDERS

PAC 5549 of 2018

BETWEEN:
MS SABADO

Applicant

AND:
MR SABADO

First Respondent

MS CARMINE
Second Respondent

MR LENNON

Independent Children’s Lawyer

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

24 MARCH 2021

THE COURT ORDERS THAT:
1.That within one month from this date the husband pay the second respondent’s costs of and incidental to these proceedings in the sum of $10,932.
2.That the costs as ordered above and interest accrued, if any, be a charge as against the husband’s entitlement to property adjustment in these proceedings and that the parties do all things necessary to cause such costs be paid out of the husband’s said entitlement prior to him receiving any payment by way of such adjustment.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sabado & Sabado has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:

The discrete application for determination is an application for costs by the second respondent Ms Carmine who was joined in property proceedings as between the applicant wife and first respondent husband.
In her Amended Initiating Application…

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 Sabado & Sabado

Details

AGLC: Sabado & Sabado [2021] FamCA 137
Case: [2021] FamCA 137
Decision Date: 24 March 2021

CaseChat Overview and Summary

In the matter of PAC 5549 of 2018, Ms Sabado (the applicant) brought proceedings against Mr Sabado (the first respondent), and Ms Carmine (the second respondent). The dispute concerned an application for costs arising from the first respondent's Response, which sought orders against the second respondent and was subsequently dismissed. The proceedings were heard by Foster J.

The primary legal issue before the court was the determination of costs following the dismissal of the first respondent's application against the second respondent. This required consideration of the applicable principles governing cost orders in family law proceedings.

Foster J reasoned that the first respondent should bear the costs of the second respondent due to the dismissal of his application against her. The court applied the principle that costs generally follow the event, particularly where an application is unsuccessful. Consequently, the court ordered the first respondent to pay the second respondent's costs in a fixed sum.

The court ordered that the husband pay the second respondent's costs of and incidental to the proceedings in the sum of $10,932 within one month. Furthermore, these costs, along with any accrued interest, were to be a charge against the husband's entitlement to property adjustment in the proceedings, to be paid out prior to him receiving any such adjustment.

Orders

Orders of the court

PAC 5549 of 2018

BETWEEN:

MS SABADO

Applicant

AND:

MR SABADO

First Respondent

MS CARMINE

Second Respondent

MR LENNON

Independent Children’s Lawyer

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

24 MARCH 2021

THE COURT ORDERS THAT:

1. That within one month from this date the husband pay the second respondent’s costs of and incidental to these proceedings in the sum of $10,932.

2. That the costs as ordered above and interest accrued, if any, be a charge as against the husband’s entitlement to property adjustment in these proceedings and that the parties do all things necessary to cause such costs be paid out of the husband’s said entitlement prior to him receiving any payment by way of such adjustment.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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(s):	PAC 5549 of 2018
Judgment of:	FOSTER J
Date of judgment:	24 March 2021
Catchwords:	FAMILY LAW – COSTS – where application for costs arising from a Response of the first respondent husband in so far as it sought orders as against the second respondent and where such Response was dismissed – where consideration of applicable principles – where order made for husband to pay the second respondent’s costs in fixed sum.
Legislation:	Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) rr 19.08(3), 19.18(1)
Cases cited:	Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 Collins and Collins (1985) FLC 91-603 Greedy and Greedy (1982) FLC 91-250 Hawkins & Roe [2012] FamCAFC 77 Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 Luadaka v Luadaka (1998) FLC 92-830 Parke & the Estate of the Late A Parke (2016) FLC 93-748 Penfold v Penfold (1980) 144 CLR 311 Sabado & Sabado and Anor [2019] FamCA 425
Number of paragraphs:	28
Date of last submission/s:	1 March 2021
Date of hearing:	20 January 2021
Place:	Suburb F
Solicitor for the Applicant:	Forshaw Lawyers
Counsel for the First Respondent:	Mr Milanovic
Solicitor for the First Respondent:	Prestige Solicitors & Associates
Counsel for the Second Respondent:	Mr Fermanis
Solicitor for the Second Respondent:	Phillip A Wilkins & Associates
Solicitor for the Independent Children's Lawyer:	Sydney West Family Lawyers

PAC 5549 of 2018
BETWEEN:	MS SABADO Applicant
AND:	MR SABADO First Respondent MS CARMINE Second Respondent
MR LENNON Independent Children’s Lawyer

ORDER MADE BY:	FOSTER J
DATE OF ORDER:	24 MARCH 2021