SOGLIA & SOGLIA - [2020] FamCAFC 122

FAMILY COURT OF AUSTRALIA

SOGLIA & SOGLIA

[2020] FamCAFC 122

FAMILY LAW – APPEAL – APPEAL AGAINST COSTS ORDER – Where the appellant wife asserts that the primary judge failed to take proper notice of the financial circumstances of each party – Where the primary judge had regard to the financial circumstances of the parties, together with s 117(2A)(e) and s 117(2A)(f) of the Family Law Act 1975 (Cth) and found that there were circumstances which justified an order for costs being made – Where the wife asserts that costs should not have been awarded against her because it was the conduct of her previous solicitors in not preparing properly for the hearing and briefing counsel four days before the hearing which necessitated her seeking an adjournment – Where the wife did not raise her complaints about her previous solicitor before the primary judge and it is not now open for her to do so – Where the wife had an opportunity to seek that her previous solicitor bear the costs of the adjournment but she did not make that submission – Where the primary judge took the conduct of the wife into account and made no error – Where there is no merit in the grounds of appeal – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent husband makes an oral application for his costs of the appeal – Where the provisions of s 117(1) of the Family Law Act 1975 (Cth) apply – Each party should bear their own costs – Application dismissed.

Family Law Act 1975 (Cth) ss 79, 117(1), 117(2), 117(2A)

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish and Anor (2005) 33 Fam LR 123; [2005] FamCA 158
Harris and Harris (1991) FLC 92-254; [1991] FamCA 124
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

APPELLANT:

Ms Soglia

RESPONDENT:

Mr Soglia

FILE NUMBER:

SYC

8323

2015

APPEAL NUMBER:

EAA

127

2019

DATE DELIVERED:

22 May 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Sydney (via video link)

JUDGMENT OF:

Strickland,
Ainslie-Wallace & Aldridge JJ

HEARING DATE:

18 May 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

31 October 2019

LOWER COURT MNC:

[2019] FamCA 792

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr O’Connor

SOLICITORS FOR THE RESPONDENT:

Redmond Hale Simpson Solicitors & Barristers

Orders

The appeal be dismissed.
The respondent husband’s oral application for costs be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Soglia & Soglia has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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…

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.

Keep reading for free

Create a free CaseChat account to read SOGLIA & SOGLIA and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FamCAFC 122
Decision Date: 22 May 2020

CaseChat Overview and Summary

In the Family Court of Australia, the case of Soglia & Soglia involved an appeal by the wife against an order for costs made by the primary judge. The wife contended that the primary judge did not adequately consider her financial circumstances in determining the costs order. The husband, in response, made an oral application for costs of the appeal under the Family Law Act 1975 (Cth). The central legal issues revolved around whether the primary judge correctly assessed the financial circumstances of the parties and whether the wife's complaints about her former solicitors' conduct could be considered on appeal.

The court examined the primary judge's assessment of the parties' financial circumstances and the relevant sections of the Family Law Act, including s 117(2A)(e) and s 117(2A)(f). The court found that the primary judge had appropriately taken into account the financial situations of both parties and the statutory provisions, concluding that there were valid reasons to order costs. The wife's argument that the costs should not apply to her due to the conduct of her previous solicitors was rejected. The court held that the wife had not raised these complaints before the primary judge, and thus it was not permissible for her to raise them on appeal. Additionally, the wife had the opportunity to seek that her previous solicitor bear the costs of the adjournment but did not do so. The court concluded that the primary judge had correctly taken into account the conduct of the wife and found no error in the primary judge's decision.

The appeal was dismissed, and the husband's application for costs of the appeal was also dismissed. The court held that under the provisions of s 117(1) of the Family Law Act, each party should bear their own costs. The appeal was dismissed with no merit found in the grounds presented by the wife. The husband's oral application for costs was rejected, and each party was ordered to bear their own costs.

Orders

Orders of the court

The appeal be dismissed.

The respondent husband’s oral application for costs be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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.