Asad & Asad (No 2) - [2022] FedCFamC2F 570

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Asad & Asad (No 2) [2022] FedCFamC2F 570

File number(s): PAC 1903 of 2016

Judgment of: JUDGE NEWBRUN

Date of judgment: 4 May 2022

Catchwords: FAMILY LAW – costs application by Wife relating to Husband’s filing of a Notice of Discontinuance - costs Order made

Legislation:
Family Law Act 1975 (Cth), ss. 79A, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r. 10.02, 10.03

Cases cited: Wint v Medimobile Pty Ltd [2016] FCCA 102

Division: Division 2 Family Law

Number of paragraphs: 41

Date of last submission/s: 29 March 2022

Date of hearing: 22 March 2022

Place: Parramatta

Solicitor for the Applicant: Gill Lawyers

Counsel for the Respondent: Mr Schroder

Solicitor for the Respondent: Rafton Family Lawyers
ORDERS

PAC 1903 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ASAD

Applicant

AND:
MS ASAD

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

4 MAY 2022

THE COURT ORDERS THAT:
1.The Husband shall pay the Wife’s scale costs in the sum of $7,474, in relation to the Husband’s Notice of Discontinuance filed 15 March 2022 and the Wife’s related costs application, and such amount shall be paid from the amount to be distributed to the Husband in accordance with Order 2 c) v) of the Court’s Orders of 14 December 2021.

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).
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 by this Court under a pseudonym Asad & Asad has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN
INTRODUCTION AND BACKGROUND

This is the determination of the Wife’s Application for costs, pursuant to Rule 10.03, following the Husband filing a Notice of Discontinuance on 15 March 2022 in relation to his Initiating Application filed 28 January 2022.
The Wife’s Application for costs against the Husband was set out in her Response to Final Orders, filed 17 March 2022.
In relation to the above Application for costs, the Husband’s written submissions state that, “Cost Orders be made as the Honourable Court deems fit.”
The Court, on 14 December 2021, following an undefended hearing held on 13 October 2021 in which the Husband did not appear, had made Orders pursuant to section 79A of the Family Law Act 1975 (Cth) (the Act) setting aside previous property Orders made…

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.

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Details

Case: [2022] FedCFamC2F 570
Decision Date

CaseChat Overview and Summary

In this case, the Family Court of Australia considered the Wife's application for costs against the Husband following the Husband's filing of a Notice of Discontinuance in relation to his initiating application filed on 28 January 2022. The Wife's application was made under Rule 10.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), following the Husband's discontinuance of his proceedings on 15 March 2022.

The legal issues before the Court were whether the Husband's conduct justified an order for costs against him, and if so, what amount should be awarded. The Court considered various factors, including the financial circumstances of both parties, their conduct during the proceedings, and whether either party had made an offer to settle. The Court also considered whether the proceedings were necessitated by the failure of a party to comply with previous orders of the Court and whether any party had been wholly unsuccessful.

Judge Newbrun found that the Husband's conduct in failing to participate in the proceedings prior to the Court's orders on 14 December 2021 was unreasonable, and that his late filing of the Notice of Discontinuance was also unjustified. The Court concluded that it would be just to order the Husband to pay the Wife's costs on a scale basis, but not indemnity costs. The Court awarded the Wife costs in the sum of $7,474, to be paid from the amount to be distributed to the Husband in accordance with Order 2 c) v) of the Court's Orders of 14 December 2021.

The final orders of the Court were that the Husband shall pay the Wife's scale costs in the sum of $7,474 in relation to the Husband's Notice of Discontinuance filed 15 March 2022 and the Wife's related costs application, and such amount shall be paid from the amount to be distributed to the Husband in accordance with Order 2 c) v) of the Court's Orders of 14 December 2021.

Orders