Drasha and Gani - [2017] FamCA 1097

FAMILY COURT OF AUSTRALIA

DRASHA & GANI

[2017] FamCA 1097

FAMILY LAW – COSTS – Where wife seeks husband pay her costs on an indemnity basis or as assessed by the Registrar – Where husband’s application for declaration of nullity of marriage was wholly unsuccessful – Where husband brought proceedings in disregard of clearly established law – Where costs ordered on an indemnity basis – Where costs to be assessed by Registrar – Husband’s response to application in a case dismissed.

Marriage Act 1985 (Cth) s 23B
Family Law Act 1975 (Cth) ss 70NFB, 117, 117AA, 117AC, 118
Family Law Rules 2004 (Cth) rr 19.08,19.18

Gani & Drasha [2017] FamCA 475
Yunghanns & Ors & Yunghanns (2000) FLC 93-029
Colgate-Palmolive Company & Colgate-Palmolive Pty Ltd v Cussons Pty Ltd (1993) FCR 225
Kohan & Kohan (1993) FLC 92-340
Muldoon & Carlyle (2012) FLC 93-513
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 364
J Corp Pty Ltd v Australian Building Labourers Federation Union of Workers (WA Branch)(No 2) [1993] FCA 42
Z (A Solicitor) v Limousin (Costs) [2010] FLC 93-433
Deniz & Deniz (1977) FLC 90-252

APPLICANT:

Ms Drasha

RESPONDENT:

Mr Gani

FILE NUMBER:

MLC

7387

2015

DATE DELIVERED:

22 December 2017

PLACE DELIVERED:

In Chambers

PLACE HEARD:

In Chambers

JUDGMENT OF:

Tree J

HEARING DATE:

Last submissions 11 October 2017

REPRESENTATION

SOLICITORS FOR THE APPLICANT:

Cornish Lawyers

THE RESPONDENT:

In person

Orders

That the husband pays the wife’s costs of and incidental to his Application filed 30 January 2017, and the wife’s Application in a Case filed 15 August 2017, on an indemnity basis as assessed by a Registrar.
Otherwise the wife’s Amended Application in a Case filed 29 August 2017, and the husband’s Response to an Application in a Case filed 7 September 2017, are dismissed.

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 Drasha & Gani 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).

FAMILY COURT OF AUSTRALIA AT CAIRNS IN CHAMBERS

FILE NUMBER: MLC7387/2015

Ms Drasha

Applicant

And

Mr Gani

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

For reasons delivered 7 July 2017, I dismissed the Initiating Application which Mr Gani (“the husband”) had filed on 30 January 2017: Gani & Drasha [2017] FamCA 475. In that Initiating Application, the husband sought an order that the marriage solemnised between himself and Ms Drasha (“the wife”) in Australia on 1 March 2008, be declared void on the grounds that it was procured by fraud. However I determined that the…

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 Drasha and Gani

Details

AGLC: Drasha and Gani [2017] FamCA 1097
Case: [2017] FamCA 1097
Decision Date: 22 December 2017

CaseChat Overview and Summary

In the matter of *Drasha and Gani*, heard by Tree J, the dispute concerned applications made by both the husband and wife. The wife sought orders in relation to her Amended Application in a Case filed on 29 August 2017, and the husband filed a Response to an Application in a Case on 7 September 2017. The court also considered the husband’s Application filed on 30 January 2017, and the wife’s Application in a Case filed on 15 August 2017.

The primary legal issues before the court were the determination of the applications filed by the parties and the appropriate orders regarding costs. Specifically, the court was required to decide whether to dismiss the substantive applications made by both the husband and the wife, and to consider the basis upon which costs should be awarded.

Tree J ordered that the husband pay the wife’s costs of and incidental to his Application filed 30 January 2017, and the wife’s Application in a Case filed 15 August 2017, on an indemnity basis. The court further ordered that, otherwise, the wife’s Amended Application in a Case filed 29 August 2017, and the husband’s Response to an Application in a Case filed 7 September 2017, be dismissed. These orders were subject to the entry of the order in the Court’s records.

Orders

Orders of the court

That the husband pays the wife’s costs of and incidental to his Application filed 30 January 2017, and the wife’s Application in a Case filed 15 August 2017, on an indemnity basis as assessed by a Registrar.

Otherwise the wife’s Amended Application in a Case filed 29 August 2017, and the husband’s Response to an Application in a Case filed 7 September 2017, are dismissed.

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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