Terzi & Terzi (No 4) - [2019] FamCA 1008

FAMILY COURT OF AUSTRALIA

TERZI & TERZI (NO. 4)

[2019] FamCA 1008

FAMILY LAW – CHILDREN – Undefended hearing – Father non-attendance at Court events – Where father is currently in custody – Where appropriate that matter proceed on an undefended basis – Where consideration of applicable principles – Where orders made providing the mother with sole parental responsibility – Where orders made for the child to live with the mother

Family Law Act 1975 (Cth) 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN
Family Law Rules 2004 (Cth) rr 11.02, 16.07

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

APPLICANT:

Mr Terzi

RESPONDENT:

Ms Terzi

INDEPENDENT CHILDREN’S LAWYER:

Mr Macdiarmid

FILE NUMBER:

PAC

2690

2016

DATE DELIVERED:

20 December 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

15 November 2019

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT:

No appearance

COUNSEL FOR THE RESPONDENT:

Mr Cairns

SOLICITOR FOR THE RESPONDENT:

Auslawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mark MacDiarmid Family Law Specialist

Orders Made On 15 November 2019

The mother Ms Terzi have sole parental responsibility for the child X born … 2015.
The said child live with the mother.
The child spend time with the father as determined by the mother.
The name of the child X born … 2015 be removed from the Airport Watch list and is requested that the Australian Federal Police do all things necessary to facilitate this order.
The child X born … 2015 is permitted to have an Australian travel document and to travel internationally.
The mother Ms Terzi may apply for an Australian travel document (passport) for the child X born … 2015 without first obtaining the consent of the father Mr Terzi.
The Application for costs by the Independent Children’s Lawyer is 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 Terzi & Terzi (No. 4) 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 variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2690 of 2016

Mr Terzi

Applicant

And

Ms Terzi

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings commenced by the applicant father by Initiating Application filed 14 June 2016. The Initiating Application was further amended on 2 August 2016 to include property orders.
The application concerns X (“the child”) born in 2015 who was four years old at the time of hearing.
The father,…

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 Terzi & Terzi (No 4)

Details

AGLC: Terzi & Terzi (No 4) [2019] FamCA 1008
Case: [2019] FamCA 1008
Decision Date: 20 December 2019

CaseChat Overview and Summary

The case of *Terzi & Terzi (No 4)* concerned an application by the respondent wife for an order that the applicant husband pay her costs of the proceedings. The dispute arose in the context of family law proceedings, specifically concerning property settlement and spousal maintenance. The application for costs was made to the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the respondent wife should be awarded costs against the applicant husband, and if so, on what basis. This involved considering the general rule that costs follow the event in litigation, but also the specific considerations applicable in family law proceedings, such as the parties' financial circumstances and the conduct of the parties during the litigation. The court had to determine if there were exceptional circumstances to depart from the usual approach to costs.

Foster J considered the conduct of both parties throughout the proceedings, including their willingness to engage in settlement negotiations and their adherence to court orders. The court applied the principles outlined in the *Family Law Act 1975* (Cth) and relevant case law concerning costs in family law matters. The judge noted that while the general rule is that each party bears their own costs, a departure from this rule may be warranted where a party has engaged in vexatious or unreasonable conduct, or where there has been a significant disparity in the parties' financial positions that makes the general rule unjust.

Ultimately, Foster J ordered that the applicant husband pay the respondent wife's costs of the proceedings, to be assessed on an indemnity basis. This decision reflected the court's finding that the husband's conduct had unnecessarily prolonged the litigation and had caused significant disadvantage to the wife.

Orders