Ahsan and Ahsan

[2020] FamCAFC 50

FAMILY COURT OF AUSTRALIA

AHSAN & AHSAN [2020] FamCAFC 50

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Application for reinstatement – Where an application for reinstatement of an appeal against property and parenting orders was dismissed – Written submissions on the issue of costs – Where the application for reinstatement was wholly unsuccessful and as a result the appeal also failed – Applicant to pay the respondent’s costs of and incidental to the application for reinstatement and the appeal, other than the costs which have already been paid – Costs to be assessed, if not agreed.

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) Sch 3

APPLICANT: Mr Ahsan

RESPONDENT: Ms Ahsan

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: PAC 2493 of 2016

APPEAL NUMBER: EAA 95 of 2019

DATE DELIVERED: 12 March 2020

PLACE DELIVERED: Sydney

PLACE HEARD: In Chambers

JUDGMENT OF: Aldridge J

HEARING DATE: Heard by way of written submissions

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 2 September 2019

LOWER COURT MNC: [2019] FamCA 616

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom SC

SOLICITOR FOR THE APPLICANT: Abrams Turner Whelan Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Ahmad

SOLICITOR FOR THE RESPONDENT: Lawfirm Pty Ltd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The applicant pay the respondent’s costs of and incidental to the Application in an Appeal filed 31 October 2019 and Appeal EA 95 of 2019, other than the costs which have already been paid, as agreed or in default of agreement, as assessed.

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 Ahsan & Ahsan 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
SYDNEY

Appeal Number: EAA 95 of 2019
File Number: PAC 2493 of 2016

Mr Ahsan

Applicant

And

Ms Ahsan

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 11 December 2019, I dismissed an Application in an Appeal filed 31 October 2019 by Mr Ahsan (“the applicant”) for reinstatement of an appeal against property and parenting orders made by a judge of the Family Court of Australia on 2 September 2019. The Independent Children’s Lawyer did not wish to be heard on the application for reinstatement of the appeal.

2. On that day, I made orders for the filing of written submissions by the applicant and Ms Ahsan (“the respondent”) as to costs. Both parties have now filed their written submissions.

3. The respondent sought costs in the sum of $32,679.75, which represented 75 per cent of her total costs in relation to the appeal ($43,573) and nearly all of her costs specifically in relation to the application for reinstatement of the appeal ($34,405).

4. The sums sought by the respondent did not take account of the applicant’s compliance with an order made on 3 December 2019 that he pay the costs of the respondent, necessitated by the adjournment of the hearing of the application for reinstatement in the sum of $5,000. The respondent accepted that to be so and modified her claim for costs so as to seek the sum of $28,929.75.

5. In proceedings under the Family Law Act 1975 (Cth) (“the Act”), each party is to bear his or her own costs (s 117(1)), unless in all of the circumstances, the Court considers that a different order is just (s 117(2)).

6. In the present proceedings, the respondent submitted that an order that the applicant pay her costs is just because the application for reinstatement of the appeal was wholly unsuccessful (s 117(2)(a)).

7. Whilst proposing that there should be no orders as to costs, the applicant did not direct any submissions as to why this should be so. Rather, the applicant’s submissions were directed only to the quantum of the respondent’s costs.

8. The applicant’s application for reinstatement of his appeal was wholly unsuccessful. As a result, the appeal also fails. I am satisfied that, in all of the circumstances, it is just to make an order that the applicant pay the respondent’s costs of the application for reinstatement and the appeal.

9. As the applicant correctly highlighted in his written submissions, the respondent does not seek her costs in accordance with Schedule 3 of the Family Law Rules 2004 (Cth) but rather seeks her costs at 75 per cent of what the respondent has agreed to pay her solicitors. There is nothing in the proceedings that suggests that the respondent’s costs ought to be assessed on anything other than the usual basis, which is at scale.

10. Further, as also pointed out by the applicant, there are some entries in the respondent’s schedule of costs which cause some concern as to whether they can be justified. It follows that the only appropriate course is that the respondent’s costs must be assessed, even though this will involve the parties in further inconvenience and expense.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 12 March 2020.

Associate:

Date:  12 March 2020