Bashir & Ghani - [2021] FamCAFC 148

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 2016

APPEAL 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…

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.

Continue reading Bashir & Ghani

Details

AGLC: Bashir & Ghani [2021] FamCAFC 148
Case: [2021] FamCAFC 148
Decision Date: 6 August 2021

CaseChat Overview and Summary

In the Appeal Division of the Family Court of Australia, Ms Bashir appealed a costs order against her, arguing against the financial circumstances assessment made by the primary judge. Mr Ghani, the respondent, sought to enforce the costs order, which was made after Ms Bashir’s application was deemed wholly unsuccessful. The primary judge had ordered Ms Bashir to pay Mr Ghani’s costs, which included legal fees and disbursements. Ms Bashir argued that the primary judge failed to consider her financial circumstances, but she did not provide any evidence to support her claim. The appeal hinged on whether the primary judge erred in assessing the costs order without additional evidence from Ms Bashir.

The court needed to determine if the primary judge made an error in assessing Ms Bashir’s financial circumstances and ordering her to pay the costs. The central issue was whether the primary judge's failure to receive evidence from Ms Bashir regarding her financial situation constituted an error that warranted overturning the costs order. The court also needed to consider whether Ms Bashir's appeal was successful enough to merit an order for costs in her favour.

The court found that there was no error in the primary judge's assessment. The primary judge correctly noted that Ms Bashir had not provided any evidence to support her financial circumstances, and thus, had not discharged the onus of proving her inability to pay the costs. The appeal was wholly unsuccessful, and the primary judge's decision was justified. The court held that the appeal was dismissed, and Ms Bashir was ordered to pay Mr Ghani’s costs of the appeal in a fixed sum of $4,108.45. The court found no basis to overturn the primary judge’s decision, given the lack of evidence provided by Ms Bashir.

Orders

Orders of the court

EAA 48 of 2021

PAC 4940 of 2016

APPEAL 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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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

EAA 48 of 2021 PAC 4940 of 2016
APPEAL 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