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Silveira & Gomez

Silveira & Gomez

Case [2022] FedCFamC2F 1233 12 September 2022

Costs

Wholly Unsuccessful

Adjournment

Conduct in Proceedings

Family Law

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Federal Circuit and Family Court of Australia
(DIVISION 2)
Silveira & Gomez [2022] FedCFamC2F 1233

File number(s): PAC 3208 of 2007

Judgment of: JUDGE MORLEY

Date of judgment: 12 September 2022

Catchwords: FAMILY LAW – parenting – application for costs following hearing on the papers – costs thrown away during proceedings – discussion of being ‘wholly unsuccessful’ in parenting proceedings.

Legislation:
Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Federal Circuit Court Rules 2001 (Cth)

Cases cited:
Colan Products Pty Ltd v Luxon Pty Ltd (No. 2) [2002] FMC 90

Colgate-Palmolive Company and Anor v Cussons Pty Ltd (1993) 46 FCR 225

Silveira & Gomez [2021] FCCA 1753

In the Marriage of Munday & Bowman (1997) 22 Fam LR 321

JEL v DDF [2001] FamCA 907

Latoudis v Casey (1990) 170 CLR 534

Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157

Penfold v Penfold (1980) 144 CLR 311

Phillips & Hansford [2020] FamCAFC 28

PBF & TRF & Anor [2005] FamCA 158

Sfakianakis & Sfakianakis [2019] FamCAFC 54

Trevi & Trevi (No. 3) [2019] FamCAFC 58

Division: Division 2 Family Law

Number of paragraphs: 65

Date of last submission/s: 19 August 2021

Date of hearing: 14 December 2020

Place: Sydney

Counsel for the Applicant: Mr Eardley

Solicitor for the Applicant: Lavulo Lawyers

Counsel for the Respondent: Mr Givney

Solicitor for the Respondent: Lama Family Lawyers

Solicitor for the Independent Children’s Lawyer: Mr Holmes of Holmes Donnelly & Co Solicitors
ORDERS

PAC 3208 of 2007

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS SILVEIRA

Applicant

AND:
MR GOMEZ

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE MORLEY

DATE OF ORDER:

12 September 2022

THE COURT ORDERS THAT:
1.The Father pay the Mother’s costs thrown away by the adjournment on 19 November 2020 in the sum of $1,000, such payment to be made by the Father to Legal Aid NSW within two months.
2.The Father pay a sum of $2,444.75 to Legal Aid NSW within two months as a contribution to the costs of the ICL in these proceedings.
3.All outstanding applications are dismissed.

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 Silveira & Gomez has been approved pursuant to s…

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 Silveira & Gomez

Details

AGLC: Silveira & Gomez [2022] FedCFamC2F 1233
Case: [2022] FedCFamC2F 1233
Decision Date

CaseChat Overview and Summary

These reasons relate to the issue of costs resulting from parenting proceedings between the Applicant Mother, Ms Silveira, the Respondent Father, Mr Gomez, and the independent children’s lawyer, Mr Holmes. The proceedings concern parenting arrangements for X, now aged 18 years, and Y, now aged 14 years. Final parenting orders were made on 5 July 2021 following the final hearing on the papers. The court was required to decide the legal issues surrounding the costs of the proceedings, including whether there were circumstances that justified the making of a costs order and, if so, the quantum of the costs to be awarded. The court considered the financial circumstances of each party, their conduct in the proceedings, whether any party was wholly unsuccessful, and whether there were any offers in writing to settle the proceedings. The court found that there were circumstances justifying the making of a costs order in relation to the final hearing not proceeding to a conclusion on 19 November 2020, being in relation to the extra legal work then required be undertaken on the Mother’s behalf in relation to the Father’s affidavit and the Mother’s affidavit filed thereafter and alteration to the Mother’s Case Outline document prepared by her solicitor. The court set the quantum of costs to be paid by the Father to the Mother at a lump sum of $1000. The court also found that the Father should contribute to the costs of the Independent Children’s Lawyer and ordered him to pay a sum of $2444.75 to Legal Aid NSW within two months.

Orders