ZANGARI & FERREIRO - [2020] FCCA 1390

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZANGARI & FERREIRO

[2020] FCCA 1390

Catchwords:
FAMILY LAW – COSTS – Application for costs on an indemnity basis – scale costs ordered.

Legislation:

Family Law Act 1975 (Cth), s.117

Federal Circuit Court Rules 2001 (Cth), r.21.02

Cases cited:

Cochrane & Cochrane [2012] FMCAfam 984

Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 46 FCR 225

Collins & Collins (1985) FLC 91-603

Edmunds & Edmunds (No. 3) [2018] FCCA 542

Kohan & Kohan (1993) FLC 92-340

Latoudis v Casey (1990) 170 CLR 534

Mortimer (Jnr) & Mortimer (Snr) [2016] FCCA 2763

Penfold & Penfold (1980) 144 CLR 311

Sala & Habner (No.2) [2018] FCCA 2738

Wrensted & Eades [2016] FamCAFC 46

Yount & Forney [2019] FCCA 3307

Applicant:

MS ZANGARI

Respondent:

MR FERREIRO

File Number:

PAC 2379 of 2018

Judgment of:

Judge Obradovic

Hearing date:

7 April 2020

Date of Last Submission:

5 May 2020

Delivered at:

Parramatta

Delivered on:

5 June 2020

REPRESENTATION

Counsel for the Applicant:

Mr Lloyd

Solicitors for the Applicant:

WM Lloyd & Associates

Counsel for the Respondent:

Ms Haughton

Solicitors for the Respondent:

John Spence & Associates

ORDERS

Within 28 days the respondent father is to pay the costs of the applicant mother in the amount of $2,987.

IT IS NOTED that publication of this judgment under the pseudonym Zangari & Ferreiro is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2379 of 2018

MS ZANGARI

Applicant

And

MR FERREIRO

Respondent

REASONS FOR JUDGMENT

On 25 November 2019 the Court made final parenting orders in respect of the parties’ two children. Those orders provided for the children to live with the mother and to spend time with the father in accordance with a regime set out in those orders.
On 3 April 2020, the mother by way of an Application in a Case, sought orders for the recovery of the children in circumstances where the children were not returned to live with the mother in accordance with the final orders made on 25 November 2020.
The Application in a Case was listed at short notice before the Court at 9.30am on 7 April 2020.
The mother was represented by her solicitors and the father by Counsel instructed by his solicitors.
The father had, after being served with the Application in a Case, filed a Response to the Application in a Case on 6 April 2020, and an Amended Response to the Application in a Case on 7 April 2020. No leave had been granted to the father to file the Amended Response. Both parties had filed Affidavits.
In any event, on the morning of the urgent listing, the father agreed to return the children to the mother’s care at 6pm that day. Such a concession was made by the father after the matter had been called on and after the matter was stood in the list for the purpose of the father providing instructions to his legal…

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 ZANGARI & FERREIRO

Details

AGLC: ZANGARI & FERREIRO [2020] FCCA 1390
Case: [2020] FCCA 1390
Decision Date: 5 June 2020

CaseChat Overview and Summary

In the matter of *Zangari & Ferreiro*, heard before Judge Obradovic, the applicant mother sought costs on an indemnity basis from the respondent father. The court ultimately ordered scale costs.

The central legal issue before the court was whether the circumstances warranted an order for indemnity costs, as opposed to the usual order for costs to be assessed on the standard scale.

Judge Obradovic considered the application for indemnity costs and determined that the threshold for such an order was not met. The court applied the principles governing costs orders in family law proceedings, which generally favour scale costs unless there are specific reasons to depart from this norm. Having regard to the evidence and submissions, the court found no justification for an indemnity costs order.

Consequently, the respondent father was ordered to pay the costs of the applicant mother in the amount of $2,987 within 28 days.

Orders

Orders of the court

Within 28 days the respondent father is to pay the costs of the applicant mother in the amount of $2,987.

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.