Stella & Stella (No 3) - [2024] FedCFamC1F 766

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Stella & Stella (No 3) [2024] FedCFamC1F 766

File number(s): SYC 2525 of 2021

Judgment of: STRUM J

Date of judgment: 12 November 2024

Catchwords: FAMILY LAW – COSTS – Where, as a result of a slip, incorrect final orders were published –Where the wife sought to rely on the incorrect orders and filed an Enforcement Application – Where the wife must have been aware of the slip – Where the husband belatedly filed an Application in a Proceeding to have the slip corrected – Where the wife belatedly consented to an amendment to the orders to correct the slip and withdrew her Enforcement Application – Where the husband seeks indemnity costs against the wife in relation to her Enforcement Application and his Application in a Proceeding to correct the slip – Consideration of s 117(2A) Family Law Act 1975 (Cth) factors – Where the Court is not satisfied that a costs order should be made.

Legislation:
Family Law Act 1975 (Cth) s 79 and s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13(1)(h) and r 12.17)

Cases cited:
Collins & Collins (1985) FLC 91-603; [1985] FamCA 15

Hatton v Harris [1892] AC 547

Keighley & Keighley [2023] FedCFamC1A 146

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

Vadisanis & Vadisanis [2015] FamCAFC 180; (2015) FLC 93-671

Division: Division 1 First Instance

Number of paragraphs: 53

Date of hearing: 3 October 2024 (Heard on the papers)

Place: Melbourne

Solicitor for the Applicant: Delaney Lawyers

Solicitor for the Respondent: York Law
ORDERS

SYC 2525 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR STELLA

Applicant

AND:
MS STELLA

Respondent

ORDER MADE BY:

STRUM J

DATE OF ORDER:

12 NOVEMBER 2024

THE COURT ORDERS THAT:
1.The husband’s costs application contained in his submissions filed 19 September 2024, pursuant to Order 3 of the Orders made by consent on 29 August 2024, be dismissed.
2.The wife’s costs application contained in her submissions filed 3 October 2024, pursuant to Order 3 of the said Orders, be dismissed.
3.There be no orders as to costs as between the husband and the wife and each of them bear their own costs, including:
(a)In the case of the wife, the costs of and incidental to her Enforcement Application filed 14 May 2024; and
(b)In the case of the husband, the costs of and incidental to his Application in a Proceeding filed 5 June 2024.

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…

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 Stella & Stella (No 3)

Details

AGLC: Stella & Stella (No 3) [2024] FedCFamC1F 766
Case: [2024] FedCFamC1F 766
Decision Date: 12 November 2024

CaseChat Overview and Summary

In the matter of Stella & Stella (No 3), the Federal Circuit and Family Court of Australia addressed a dispute arising from incorrect final orders that were published due to a slip. The wife filed an Enforcement Application relying on these incorrect orders, while the husband subsequently filed an Application in a Proceeding to correct the slip. The wife eventually consented to an amendment of the orders and withdrew her Enforcement Application. The husband sought indemnity costs against the wife for her Enforcement Application and his own Application in a Proceeding. The legal issues before the court included whether the wife's reliance on the incorrect orders justified an indemnity costs order against her and whether the husband's application to correct the slip warranted costs against the wife. The court considered the relevant factors under section 117(2A) of the Family Law Act 1975 (Cth) in determining whether a costs order should be made.

The court found that the wife must have been aware of the incorrect orders, as evidenced by her reliance on them in her Enforcement Application. However, the court was not satisfied that an indemnity costs order should be made against the wife. The court reasoned that while the wife's actions were inadvisable, they did not warrant such a penalty. Furthermore, the court determined that the husband's Application in a Proceeding to correct the slip was a necessary step to rectify the error, and thus, he was not entitled to costs against the wife for this application. The court concluded that neither party was entitled to indemnity costs from the other, and each party would bear their own costs.

Orders

Orders of the court

SYC 2525 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR STELLA

Applicant

AND:

MS STELLA

Respondent

ORDER MADE BY:

STRUM J

DATE OF ORDER:

12 NOVEMBER 2024

THE COURT ORDERS THAT:

1. The husband’s costs application contained in his submissions filed 19 September 2024, pursuant to Order 3 of the Orders made by consent on 29 August 2024, be dismissed.

2. The wife’s costs application contained in her submissions filed 3 October 2024, pursuant to Order 3 of the said Orders, be dismissed.

3. There be no orders as to costs as between the husband and the wife and each of them bear their own costs, including:

(a) In the case of the wife, the costs of and incidental to her Enforcement Application filed 14 May 2024; and

(b) In the case of the husband, the costs of and incidental to his Application in a Proceeding filed 5 June 2024.

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

Both of the parties have filed written submissions in support of the costs orders sought by them, which I have read and considered.BACKGROUND The substantive proceedings were commenced by the wife on 9 April 2021 and listed for final hearing before me for four days, commencing 5 June 2023. In the wife’s Case Outline filed 1 June 2023, she set out the final orders sought by her. Of particular relevance, for present purposes, was Order 4, which referred to the list of items of personal property contained in the Annexure to her Case Outline, that she sought to retain. This list of items was as follows:(a)Designer wall lamps;(b)Designer standing lamp;(c)Professional photographs;(d)Art hanging in internal stairwell;(e)Photography art hanging in Mr C's bedroom;(f)Art stored in Attic;(g)Personal suitcases stored in attic;(h)Trolley in Mr C's bedroom;(i)Designer table in ensuite;(j)Designer chairs;(k)Designer armchair stored in attic;(l)Wife's personal clothing that remained stored in closet in Ms D's bedroom;(m)Ms D's clothing and personal items in her bedroom;(n)Mr C's clothing and personal items in his bedroom;(o)Mr B's clothing and personal items in his bedroom;(p)All personal sporting gear and equipment in attic and garage belonging to the Wife and children;(q)Wife's personal collection of designer ceramics and art objects that remained on shelves in living room;(r)Kitchen appliance (birthday gift from Ms J);(s)All wife's personal belongings stored in garage, including chairs and table;(t)Mr C's personal sporting equipment in garage;(u)Ornament beside bbq; and(v)Decorative pieces on shelves in lounge room. The husband deposes in his Affidavit filed 5 June 2024 in support of his Application in a Proceeding (“the husband’s Affidavit”) at [8] that, during the final hearing, negotiations took place between the parties’ respective solicitors in relation to this list of items. After ongoing negotiations, the husband and wife reached an agreement that provided for the husband to make available for collection by the wife or her agent the following:(a)Professional photographs;(b)Art hanging in internal stairwell;(c)Trolley in Mr C’s bedroom;(d)Designer table in ensuite;(e)Designer chairs;(f)Kitchen appliance (birthday gift from Ms J), if found;(g)Chairs and table;(h)the parties’ child Mr C’s personal sporting equipment in garage;(i)Decorative pieces on shelves in lounge room. Orders by consent were made to this effect on 8 June 2023, being the last day of the trial, and judgment was otherwise reserved (“the June 2023 Orders”). Both parties agree that, following the June 2023 Orders, the wife collected some of the items of property, however they disagree on the date that this occurred: in the husband’s Affidavit, he deposes at [14] that this occurred in 2023, whereas the wife deposes at [15] of her Affidavit filed 14 May 2024 in support of her Enforcement Application (“the wife’s Affidavit”) that it occurred in 2024 (sic). This difference in dates, whilst confusing, is ultimately immaterial to my decision.

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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File number(s):	SYC 2525 of 2021
Judgment of:	STRUM J
Date of judgment:	12 November 2024
Catchwords:	FAMILY LAW – COSTS – Where, as a result of a slip, incorrect final orders were published –Where the wife sought to rely on the incorrect orders and filed an Enforcement Application – Where the wife must have been aware of the slip – Where the husband belatedly filed an Application in a Proceeding to have the slip corrected – Where the wife belatedly consented to an amendment to the orders to correct the slip and withdrew her Enforcement Application – Where the husband seeks indemnity costs against the wife in relation to her Enforcement Application and his Application in a Proceeding to correct the slip – Consideration of s 117(2A) Family Law Act 1975 (Cth) factors – Where the Court is not satisfied that a costs order should be made.
Legislation:	Family Law Act 1975 (Cth) s 79 and s 117 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13(1)(h) and r 12.17)
Cases cited:	Collins & Collins (1985) FLC 91-603; [1985] FamCA 15 Hatton v Harris [1892] AC 547 Keighley & Keighley [2023] FedCFamC1A 146 Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4 Vadisanis & Vadisanis [2015] FamCAFC 180; (2015) FLC 93-671
Division:	Division 1 First Instance
Number of paragraphs:	53
Date of hearing:	3 October 2024 (Heard on the papers)
Place:	Melbourne
Solicitor for the Applicant:	Delaney Lawyers
Solicitor for the Respondent:	York Law

SYC 2525 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR STELLA Applicant
AND:	MS STELLA Respondent

ORDER MADE BY:	STRUM J
DATE OF ORDER:	12 NOVEMBER 2024