Bello & Marino (No 4) [2021] FCCA 1554 (9 July 2021)

Last Updated: 9 August 2021

FEDERAL CIRCUIT COURT OF AUSTRALIA

Bello & Marino (No 4) [2021] FCCA 1554

File number(s):	PAC 437 of 2020
Judgment of:	JUDGE DUNKLEY
Date of judgment:	9 July 2021
Catchwords:	FAMILY LAW – costs application
Legislation:	Family Law Act 1975 (Cth) s 117
Cases cited:	Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 118 ALR 248 Marino & Bello & Anor [2020] FamCAFC 314 Marino & Bello & Anor (No 2) [2020] FamCAFC 317
Number of paragraphs:	59
Date of last submission/s:	14 April 2021
Date of hearing:	22 February 2021
Place:	Parramatta
Counsel for the Applicants:	Ms Mahony
Solicitor for the Applicants:	Rowlandson & Co
Counsel for the Respondent:	The respondent appeared in person

ORDERS

		PAC 437 of 2020
BETWEEN:	MR BELLO First Applicant MS BELLO Second Applicant
AND:	MR MARINO Respondent

ORDER MADE BY:	JUDGE DUNKLEY
DATE OF ORDER:	9 JULY 2021

THE COURT ORDERS THAT:

1. Mr Marino is to pay to Mr Bello and Ms Bello or as they direct in writing, total costs in the sum of $7,782.
2. The costs in order 1 hereof are to be paid on or before the expiry of 30 days from the date hereof.

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 under the pseudonym Bello & Marino (No 4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

1. On 30 January 2020 Mr Marino filed an Initiating Application in which he sought the following final orders:
   1. Parental Order – That the Applicant be allowed to spend time with X, Z and Y upon reasonable notice to either the First or Second Respondent.
   2. Parental Order – That the Applicant be allowed to attend any and all important life events including but not limited to birthdays, christenings, Christmas etc, of X, Z and Y.
   3. Parental Order – That C (the Second Respondent’s first born son) be allowed to spend time upon reasonable notice to the first or second respondents and attend any and all important life events including but not limited to birthdays, christenings, Christmas etc, of X, Z and Y.
2. Mr Marino prepared his own documents.
3. Mr Marino is the uncle of the children referred to in his application.
4. In paragraphs 2 and 3 of his affidavit sworn 30 January 2020 filed in support of his Initiating Application, Mr Marino wrote:
   2. I am the uncle of X, Y and Z. I have met X in 2013 I have held her twice and never seen her again due to the unjustified capricious whims of the Respondents. The other 2 children have been kept from me. I do not know them.
   3. I have a legal right to see my nieces and nephew and it is in their best interests to know and have contact with their uncle. They also have a legal right to know and see me.
5. Having filed his Initiating Application, Mr Marino thereafter filed 5 Applications in a Case with supporting affidavits, a Notice to Admit Facts, and 5 subpoenae, all in the period from 30 January 2020 to 12 May 2020.
6. On 13 May 2020 Mr and Mrs Bello each filed a Response and Affidavit. Mr and Mrs Bello are the parents of the children.
7. In their Responses they sought identical orders being:

1. That the applicant’s Initiating Application filed 30 January 2020 be dismissed.
2. That the applicant pay the first respondent’s costs on an indemnity basis.

8. In her affidavit, in paragraph 2 thereof, Ms Bello wrote:

The applicant is my estranged brother Mr Marino (“Mr Marino”) and Mr Marino was born in 1981 and is presently aged 38 years.

9. On 28 May 2020 Judge Myers directed the case be listed on 15 June 2020 “for hearing of the summary disposal of the matter”.
10. On 15 June 2020 Judge Myers transferred the case to Judge Humphreys and ordered:

The application for summary dismissal on 7 August 2020 at 10am with priority.

11. On 17 June 2020 Mr Marino filed an Application in a Case in which he sought the following orders:

1. The matter is heard urgently at short notice.
2. Any order made on 28 May 2020 is voided.

3. Any order made on 15 June 2020 apart from order 1 (listing the matter for directions in front of His Honour Judge Humphreys is voided).
4. The Applicant’s Application in a Case of 22, 23, 28 June 2020 be relisted to their appropriate date and the 17 Aug (sic) 2020 application be relisted on the appropriate date as it contains important amendment of order and no order was given for the adjournment or in the alternative in line with s37M they all be heard on the same day on or before 30 June 2020.
12. The Application in a Case was listed on 26 June 2020.
13. On 26 June 2020 Judge Humphreys ordered:
    1. The Application of 16 June 2020 (sic) be dismissed.
    2. The Applicant to file and serve a Case Summary Outline for the Summary Dismissal Application on or before 10 July 2020.
    3. Direct that Applicant limit the Case Summary Outline document to 20 pages in length.
    4. The Respondent to file and serve any submissions in response on or before 17 July 2020.
    5. Direct that no further evidence or application be filed by the applicant, other than a case summary document referred to in order 2 and the Registry directed not to receive those documents.
    6. Any other listings of this matter be vacated, pending the decision of the Summary Dismissal Application.
    7. Costs for today be reserved.
14. On 15 September 2020 Judge Humphreys delivered his judgment Marino & Bello & Anor (No 2) [2020] FCCA 2203 and ordered:

1. The application for summary dismissal is upheld.

2. The applicant is to pay the first and second respondents’ costs in the amount of $12,200.00 each with a total amount being $24,400.00.
15. On 28 September 2020 Mr Marino filed a Notice of Appeal relevant to the judgment and orders of Judge Humphreys of 15 September 2020.
16. On 29 September 2020 Mr Marino filed a Notice of Appeal relevant to the orders made by Judge Humphreys on 26 June 2020.
17. On 11 December 2020 their Honours Justices Ainslie-Wallace, Ryan and Aldridge delivered 2 reasons for judgment.
18. The first reasons of judgment Marino & Bello & Anor [2020] FamCAFC 314 related to orders made by their Honours on 6 November 2020 at the appeal hearing relevant to Judge Humphreys judgment when they ordered:

(3) The appeals EAA 106 of 2020 and EAA 136 of 2020 be allowed
(4) The orders of the primary judge made on 26 June 2020 and 15 September 2020 be set aside.
(5) By no later than 4 December 2020 at 4.00pm the appellant is to file and serve a Summary of Argument of no more than five (5) pages as to the point of his standing to bring proceedings.
(6) By no later than 18 December 2020 at 4pm the first and second respondents are to file and serve a Summary of Argument in response of no more than five (5) pages.

19. On 11 December 2020 in Marino & Bello & Anor (No 2) [2020] FamCAFC 317 their Honours Justices Ainslie-Wallace, Ryan and Aldridge delivered their second reasons for judgment about the orders they had earlier made 6 November 2020 and ordered:

(1) The Application in an Appeal filed on 23 November 2020 is allowed.
(2) Orders 5 and 6 made on 6 November 2020 are stayed.
(3) The Applications in an Appeal filed on 20 November 2020 and 1 December 2020 are dismissed.
(4) The applicant pay the first and second respondents costs of an incidental to his applications filed on 1 December 2020 in the sum of $2,500 which costs are to be paid within one (1) month.

20. The later reasons record the fact that Mr Marino had on 17 November 2020 discontinued his proceedings for parenting orders that had first been filed in the Federal Circuit Court on 30 January 2020.
21. Thus by 11 December 2020 the saga of proceedings, which had started on 30 January 2020 and which by 11 December 2020, then contained 3 files of 84 documents, was ended.
22. On 18 December 2020 Mr and Mrs Bello reignited the proceedings when they each filed an Application in a Case in which they sought:
    1. Pursuant to r.13.02 of the Federal Circuit Court Rules 2001 that the Applicant pay the Second Respondent’s costs incurred in the proceedings from 27 March 2020 until 25 June 2020 on an indemnity basis.
    2. In the alternative order 1, that the Applicant pay the Second Respondent’s costs incurred in the proceedings from 27 March 2020 until 25 June 2020 on a solicitor/client basis or in the alternative as provided for in the Federal Circuit Court Rules.
    3. That this Application be listed for determination by a Registrar of the Federal Circuit Court or in the alternative by a judicial officer other than Judge Myers or Judge Humphreys.
    4. That any costs order made against the applicant in favour of the first and second respondents be apportioned equally.
    5. That the Applicant pay the Second Respondent’s costs of and incidental to this Application.
23. By Response filed 19 February 2020, Mr Marino sought the following orders:
    1. The Applications in a Case of 15 Dec 2020 (sic) is immediately dismissed.
    2. Out of pocket costs of $500 awarded to the Respondent of this Application being costs at first instance.
    3. Personal Costs Orders are imposed on Rowlandson & Co.
    4. In the alternative to 1 and 2, the matter is stayed until the Court is satisfied of the First and Second Respondent’s return to Australia and is further satisfied of their permanent residence status in Australia.
    5. Further, in addition to [4], the matter is stayed until the provisional orders No. ... in Civil Proceedings: ... are determined by the Court.
    6. Further, and in addition to 4 and 5, the Court is satisfied of the First Respondent’s true identity.
24. The above cost dispute was heard on the papers with both written and oral submissions.

DOCUMENTS

• Application in a Case filed by Mr Bello on 18 December 2020
• Application in a Case filed by Mrs Bello on 18 December 2020
• Affidavit of Mr Bello sworn 15 December 2020
• Affidavit of Ms Bello sworn 15 December 2020
• Tender bundle of documents
• Case outline
• Applicant’s further submissions filed 13 April 2021
• Response to Application in a Case filed 18 February 2021
• Respondent’s Submissions filed 30 March 2021
• Respondent’s Submissions in Reply sealed 14 April 2021

LAW

25. Section 117 of the Family Law Act is relevant to costs and provides:

(1) Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:

(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.

26. Mr Marino is the uncle of the subject children and said at the commencement of the proceedings in his first filed affidavits says he had met X in 2013 and not since and had never met the other children.
27. The summary dismissal of his application to spend time with the children was overturned on appeal.
28. The Full Court was then preparing the case to determine whether Mr Marino had standing to bring his application.
29. Before the Full Court could do so, Mr Marino discontinued his application for parenting orders.
30. The Court is now asked to order costs against Mr Marino.
31. By commencing proceedings and then withdrawing them nearly 12 months later, has meant Mr Marino has obtained no parenting orders and put each of Mr and Mrs Bello to the expense of defending the proceedings through multiple court events before 2 judges of the Federal Circuit Court and 3 appeal judges of the Family Court of Australia.
32. It is this action of commencing proceedings and then abandoning those proceedings, that causes the court to exercise its discretion to depart from the usual terms of s 117(1).
33. Little is known about any of the protagonists’ financial position.
34. Mr Bello is self‑employed conducting a business through a corporate structure of which Ms Bello is the sole shareholder and director.
35. Mr and Mrs Bello rent the home they live in.
36. Despite being the applicants they provide no other information about their finances.
37. Mr Marino leads no evidence about his financial circumstances.
38. Neither party was in receipt of a grant of legal aid.
39. Mr Marino has conducted the litigation without regard to proportionality, filing multiple applications, before eventually abandoning entirely his application.
40. Each party has complied with the orders and directions made over the course of the litigation.
41. Offers in writing have been made on behalf of Mr and Mrs Bello about the conduct of the proceedings and the documents filed. The first as early as 31 March 2020.
42. Mr Marino succeeded in his appeal and had the summary dismissal order and costs order set aside. He then withdrew his substantive application which the Full Court was prepared to deal with deciding his standing to seek parenting orders.
43. Mr Marino, by discontinuing his application, reopens the determination of the cost issue and for reasons stated earlier herein that application succeeds and costs will be assessed on the scale. Not every court event or document attracts costs because the Full Court set aside Judge Humphreys orders, so court events and documents relevant to that event cannot property attract a cost order.
44. On balance a cost order against Mr Marino is warranted.
45. I am not satisfied in light of all of that referred to above that Mr Marino conduct warrants the making of an indemnity cost order.
46. As Justice Sheppard sets out in Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 118 ALR 248 is not the usual outcome that there be indemnity costs order. There needs to be circumstances that justify such indemnity cost order.
47. I find no such circumstances in this case.
48. Costs are then to be determined pursuant to the scale set out in Schedule 1 of the Federal Circuit Court Rules.
49. Not included in this determination is costs relevant to the appeal process. The Full Court has dealt with that aspect.
50. The fact that Mr Marino succeeded on appeal, and has set aside the cost order made by Judge Humphreys, does not determine this cost application.
51. That cost order was set aside because Mr Marino succeeded in setting aside the summary dismissal of his application.
52. The cost assessed are therefore as follows:

Item 1 Opposing an application	$2,199
Item 13 Daily hearing fee 28 May 2020 short mention 22 February 2021 short mention	$299 $299
Item 6 Preparation for cost hearing One day matter	$4,686
Item 9 Take judgment	$299
TOTAL	$7,782

53. To award the above costs to each of the respondents separately would be a duplication. The legal work for each respondent has been identical.
54. Each of the respondents’ cases were identical and capable of being dealt with by the same documents.
55. They each sought the same outcome.
56. It is not possible to discern from the itemised account rendered to Mr and Mrs Bello annexed to their affidavit, how many of the photocopy disbursements are relevant, so none are included.
57. A thirty day period to pay is a generally accepted time frame and that is to be applied.
58. The alternate orders sought by Mr Marino have no evidential basis relevant to orders 4, 5 and 6 as sought in the Response to Application in a Case, and are dismissed.
59. As a natural consequence of the orders in this judgment, orders 1, 2 and 3 sought by Mr Marino in his Response to Application in a Case, do not succeed.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dunkley.

Associate:

Dated: 9 July 2021