BAGHERI & GOUDARZI - [2018] FamCA 636

FAMILY COURT OF AUSTRALIA

BAGHERI & GOUDARZI

[2018] FamCA 636

FAMILY LAW – COSTS – Where the father seeks costs arising from parenting proceedings – Where a hearing was previously adjourned as on the first day of trial the mother introduced into evidence material that could not be fairly met by the father – Where the mother informed the father on the first day of a subsequent hearing that she would be relying on a previous affidavit and not her most recently filed trial affidavit – Where the father seeks his costs be assessed pursuant to r 19.18 of the Family Law Rules 2004 (Cth) – Where the father incurred costs over and above those which he would normally incur because of the conduct of the mother – Where a costs order is made against the mother on a party and party basis.

FAMILY LAW – COSTS – Where the father seeks to be reimbursed for one half of the cost of the single expert – Consideration of r 15.47 of the Family Law Rules 2004 (Cth) and s 117 of the Family Law Act 1975 (Cth) – Where the usual order in respect of the fees of a single expert is that the fees be paid equally by the parties – Where the mother is ordered to reimburse the father for half the cost of the single expert.

FAMILY LAW – COURTS AND JUDGES – Bias – Where the mother has made an oral application for recusal due to bias – Consideration of the legal position explored in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and other case law – Where there is nothing to suggest that a fair-minded lay observer might reasonably apprehend that the Court might not bring an impartial and unprejudiced mind to the determination of the costs proceedings – Where the application has no prospect of success.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) rr 15.47, 19.18

Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Stephens v Stephens and Anor (2010) 44 Fam LR 117

APPLICANT:

Mr Bagheri

RESPONDENT:

Ms Goudarzi

FILE NUMBER:

SYC

7646

2008

DATE DELIVERED:

23 August 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

17 July 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

COUNSEL FOR THE APPLICANT:

Mr O’Reilly

THE RESPONDENT:

In person

Orders

The mother shall pay to the solicitor for the father the sum of $44,756.23 in respect of costs within 21 days from the date of these orders or within such further time as is agreed between the parties.

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 Bagheri & Goudarzi has been approved by the Chief Justice…

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

AGLC: BAGHERI & GOUDARZI [2018] FamCA 636
Case: [2018] FamCA 636
Decision Date: 23 August 2018

CaseChat Overview and Summary

In proceedings before Loughnan J of the Family Court of Australia, the father sought costs arising from parenting proceedings. The dispute concerned the mother's conduct during the proceedings, which the father alleged caused him to incur costs beyond those ordinarily expected. Specifically, the mother had introduced evidence on the first day of a previous trial that could not be fairly met by the father, leading to an adjournment. Furthermore, on the first day of a subsequent hearing, the mother indicated she would rely on a previous affidavit rather than her most recently filed trial affidavit. The father sought his costs to be assessed pursuant to rule 19.18 of the Family Law Rules 2004 (Cth).

The court was required to determine whether the mother's conduct warranted a costs order against her on a party and party basis, and whether she should reimburse the father for half the cost of a single expert, considering rule 15.47 of the Family Law Rules 2004 (Cth) and section 117 of the Family Law Act 1975 (Cth). Additionally, the court had to consider the mother's oral application for recusal of the judge due to alleged bias, applying the principles established in *Ebner v Official Trustee in Bankruptcy* (2000) 205 CLR 337 and other relevant case law.

Loughnan J reasoned that the mother's conduct in introducing late evidence and altering her reliance on affidavits had indeed caused the father to incur additional costs. The court found no basis for the mother's application for recusal, concluding that a fair-minded lay observer would not reasonably apprehend that the court might not bring an impartial mind to the determination of the costs proceedings. The usual order for the equal payment of a single expert's fees was applied.

Consequently, the mother was ordered to pay the father's costs in the sum of $44,756.23 within 21 days, and to reimburse the father for half the cost of the single expert.

Orders

Orders of the court

The mother shall pay to the solicitor for the father the sum of $44,756.23 in respect of costs within 21 days from the date of these orders or within such further time as is agreed between the parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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