Bashir & Ghani
[2021] FamCAFC 148
•6 August 2021
FAMILY COURT OF AUSTRALIA
Bashir & Ghani [2021] FamCAFC 148
Appeal from: Bashir & Ghani (No 3) [2021] FCCA 807 Appeal number(s): EAA 48 of 2021 File number(s): PAC 4940 of 2016 Judgment of: ALDRIDGE J Date of judgment: 6 August 2021 Catchwords: FAMILY LAW – APPEAL – COSTS – Appeal from costs order made against the appellant – Financial circumstances – Where no evidence was put before the primary judge – Wholly unsuccessful – No error by the primary judge –
Appeal dismissed – Appellant to pay the respondent’s costs of the appeal in a fixed sum.Legislation: Family Law Act 1975 (Cth) s 117(2A) Cases cited: Bashir & Ghani [2017] FCCA 3448
Bashir & Ghani (No 2) [2021] FCCA 253
Beamish & Coburn (dec’d) (2021) FLC 94–005; [2021] FamCAFC 20
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lenova & Lenova (Costs) [2011] FamCAFC 141
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Division: Appeal Division Number of paragraphs: 34 Date of hearing: 6 August 2021 Place: Sydney (via video link) Counsel for the Appellant: Mr Cairns Solicitor for the Appellant: Fay Rose Legal Counsel for the Respondent: Mr Liedermann Solicitor for the Respondent: Falzon Legal ORDERS
EAA 48 of 2021
PAC 4940 of 2016APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS BASHIR
Appellant
AND: MR GHANI
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
6 AUGUST 2021
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the respondent’s costs fixed in the sum of $4,108.45.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bashir & Ghani has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
This is an appeal from an order made by a judge of the Federal Circuit Court of Australia made on 23 April 2021 which required Ms Bashir (“the appellant”) to pay the costs of Mr Ghani (“the respondent”) fixed in the sum of $23,284.90.
The appeal is being heard by a single judge pursuant to a direction given by the Chief Justice of the Family Court of Australia on 2 July 2021.
In order to understand the appeal it is necessary to set out the appropriate factual framework which is taken from the two earlier decisions of the primary judge in this matter (Bashir & Ghani [2017] FCCA 3448 and Bashir & Ghani (No 2) [2021] FCCA 253).
The parties married and commenced cohabitation in 2010 and separated in 2015. The parties have two children who were born in 2012 and 2015.
The appellant commenced parenting proceedings in the Federal Circuit Court of Australia (“the Federal Circuit Court”) on 20 October 2016. On 24 November 2016, the parties entered into a parenting plan under which the children would live with the respondent and spend limited supervised time with the appellant. Notwithstanding the parenting plan, the Federal Circuit Court proceedings continued, albeit with intermittent involvement from the appellant.
The appellant also became disengaged with the children and the evidence was that they last spent time with the appellant in mid-2017.
This led to orders being made for the matter to proceed on an undefended basis and a final hearing took place, in the absence of the appellant on 22 November 2017. The appellant had however indicated to the Court that she consented to the children living with the respondent. The primary judge made orders that the respondent have sole parental responsibility for the children who were to live with him. No orders were made for the children to spend time with the appellant.
On 25 June 2020, the appellant commenced further proceedings seeking orders that the children spend time with her.
The primary judge conducted a hearing as to whether the fresh circumstances that the appellant asserted now existed warranted reconsideration of the parenting orders (an application of the principles set out in Rice and Asplund (1979) FLC 90-725). Her Honour found that no grounds existed which justified the reconsideration of the orders and on 17 February 2021 the appellant’s application was dismissed.
No appeal was taken from that decision.
On 22 March 2021, the respondent filed an Application in a Case seeking orders that the appellant pay his costs of the threshold proceedings on an indemnity basis. The primary judge was satisfied that the circumstances justified the making of a costs order, but not on an indemnity basis. Her Honour fixed the costs to be paid in the sum of $23,284.90.
It is unremarkable to note that a judgment is presumed to be correct until an error is established. The issue of costs is discretionary and any appeal from such a decision is subject to the well‑known principles in House v The King (1936) 55 CLR 499 at 504–505. An error cannot be demonstrated simply by establishing that another judge or an appellate court may have reached a different conclusion (Gronow v Gronow (1979) 144 CLR 513 at 519–520).
The appellant submitted that the primary judge failed to give weight, or gave insufficient and/or inappropriate weight to:
(1)The fact that the appellant had received a grant of legal aid for the threshold proceedings;
(2)The appellant’s financial circumstances; and
(3)The fact that there were no spend time orders in place and that the appellant had demonstrated a change in circumstances, albeit not sufficient, but had lawfully put on an application.
As to the first point the primary judge said:
25.The [appellant] had a grant of legal aid for the 2020 proceedings. Why her application was considered meritorious such that she was granted legal aid is another mystery in these proceedings.
26.It is a fact that the [appellant] was able to conduct these proceedings without any personal financial cost while the [respondent] has incurred significant costs as a result of meeting the [appellant’s] application. It is worth repeating that the [respondent] has incurred close to $65,000 in legal costs and disbursements as a result of the latest round of litigation between the parties. This means that the [respondent] has incurred over $100,000 in legal costs and disbursements to date (in both sets of proceedings).
Her Honour, therefore, was clearly cognisant of the grant of legal aid.
The appellant submitted that the primary judge should have inferred from the grant of legal aid that the appellant was a person of limited means with a cause to litigate because “the Court may take judicial notice of the checks and balances in place for the prudent and proper use of public monies by the Commission” (Appellant’s Summary of Argument, filed on 16 July 2021, paragraph 1).
Whilst it may safely be inferred that a legal aid body is likely to have some criteria with which it determines grants of legal aid, the Court cannot know what those criteria are or how they were applied without evidence on the subject.
Further, any such inference could only be drawn in the broadest of possible terms and be no more than a person at the Legal Aid Commission who was satisfied that the relevant criteria, whatever they may be, for a grant of legal aid was satisfied. Such an inference can be no substitute for direct evidence of the appellant’s financial position. The appellant submitted that, nonetheless, the fact of the grant of legal aid should have put the primary judge on notice that the appellant may not be in a good financial position and should have made further enquiries.
This leads to the appellant’s second point. It is quite clear she did not adduce any evidence of her finances other than to provide some information that she did not work outside the home and was in receipt of a grant of legal aid (Appellant’s Submissions in Reply, filed on 31 March 2021, p.3). The appellant now submits that the primary judge was “required to make some sufficiently detailed inquiries to the financial circumstances of the parties” (Appellant’s Summary of Argument, filed on 16 July 2021, paragraph 2).
A similar proposition was soundly rejected by the Full Court of the Family Court of Australia in Beamish & Coburn (dec’d) (2021) FLC 94–005 (“Beamish”) at [45]–[48].
If the appellant wished to have her financial circumstances taken into account it was up to her to adduce the relevant evidence. Having failed to do so she now cannot complain that the primary judge should have required it. In the course of oral submissions the appellant accepted that there was no legal obligation on the trial judge to require further financial information but nonetheless it should have been sought as a matter of fairness and justice.
As explained in Beamish at [47]–[48], in civil proceedings such as the present it is for the parties to determine the meets and bounds of the dispute and the fact that a person fails to put on evidence, for example, in relation to one of the considerations to be taken into account under s 117(2A) of the Act, is an indication to the Court that the party does not consider it to be relevant.
Whilst the Court may have adopted the course submitted for by the appellant, it was not an error not to do so.
Finally, in answer to both the first and second points, it is quite plain that a costs order may be made against a person even though they are impecunious (Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12]). If it were not the case, such litigants could litigate with impunity. The lack of means is a consideration to be taken into account where there is appropriate evidence, but it is not determinative.
As to the third point, it remains the case that the appellant was wholly unsuccessful. This is a matter the Court is obliged to take into account (s 117(2A)(e) of the Act) and was one to which her Honour gave considerable weight (at [27]).
Finally, it was submitted that the primary judge erred by taking into account the “monies spent by the respondent father, not only in these proceedings, but also in the initial 2017 proceedings” (Appellant’s Summary of Argument, filed on 16 July 2021, paragraph 2).
The primary judge did take the expenditure of funds by the respondent into account in the following paragraphs:
20.The [respondent’s] financial circumstances have been severely impacted by the 2016 proceedings, not only in terms of the costs which the [respondent] had incurred in those proceedings, but also in terms of the toll the proceedings had on his capacity to earn an income.
21.The [respondent] says in respect of the 2016 proceedings that he incurred $47,338.09 in legal fees (including $6,270 in barrister’s fees). The [respondent] refers to the 2016 proceedings as a “three year litigation” even though those proceedings were commenced on 20 October 2016 and finalised on 27 November 2017 (which is less than 14 months and well short of three years).
22.The [respondent] funded the 2016 proceedings through a loan from a family friend for “legal expenses and other expenses”. He still owes his friend $57,500. There is no evidence as to what the “other expenses” relate to, nor how much of his legal costs he has repaid to date.
23.The [respondent] presently lives with the children, his partner and her children in Western Australia. The particulars of his income and expenses, or indeed the income and expenses of others in his household, are not the subject of any evidence.
…
26.It is a fact that the [appellant] was able to conduct these proceedings without any personal financial cost while the [respondent] has incurred significant costs as a result of meeting the [respondent’s] application. It is worth repeating that the [respondent] has incurred close to $65,000 in legal costs and disbursements as a result of the latest round of litigation between the parties. This means that the [respondent] has incurred over $100,000 in legal costs and disbursements to date (in both sets of proceedings).
27.The [appellant] was wholly unsuccessful in these proceedings. Indeed, the [appellant] was wholly unsuccessful in the 2016 proceedings with no costs consequences.
The expenditure on legal fees and any remaining obligation either to the lawyers who provided those services in respect of their outstanding fees or liability to other persons from which the funds have been borrowed to pay lawyers, are clearly matters that form part of a party’s financial circumstances and could properly be taken into account.
Further, the Court is entitled to have regard to any relevant matter (s 117(2A)(g) of the Act).
Again, the expenses that have been incurred in parenting proceedings particularly by a parent who retains the care of the children are in my view relevant matters to take into account. The proceedings were commenced by the appellant. They were the second set of parenting proceedings that she commenced. Both were completely unsuccessful, but the respondent was required to engage in those proceedings and spend considerable sums of money doing so.
These are matters that appropriately form an order for costs in parenting proceedings.
Similarly, this aspect of the appeal has not been made out and it follows that the appeal is dismissed.
COSTS
It is my opinion that it is appropriate that the appellant pay the respondent’s costs. The appeal was wholly unsuccessful and she did not accept an offer made by the respondent for the appeal to be dismissed with no orders as to costs.
Accordingly, I order the appellant to pay the respondent’s costs fixed in the sum of $4,108.45.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 10 August 2021
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