Ebrahim & Lamsaard (No 2) - [2023] FedCFamC1F 209

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ebrahim & Lamsaard (No 2) [2023] FedCFamC1F 209

File number(s): PAC 3622 of 2021

Judgment of: MCCLELLAND DCJ

Date of judgment: 29 March 2023

Catchwords: FAMILY LAW – COSTS – Where the mother’s application has been struck out for want of prosecution – Father seeks costs, including costs against the mother’s solicitor – Where neither the mother nor her solicitor have engaged in proceedings since 30 November 2022 – Non-appearance on five separate occasions – Mother’s solicitor engaged in unreasonable conduct and was in default of obligations to the Court – Mother to pay father’s costs up until 29 November 2022 – Personal costs order against the mother’s solicitor for period subsequent to 30 November 2022.

Legislation:
Family Law Act 1975 (Cth) s 117(2A)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.08, 12.15

Federal Circuit Court Rules 2001 (Cth)

Cases cited:
AXX18 v Minister for Home Affairs and Anor [2019] FCCA 1399

Ebrahim & Lamsaard [2023] FedCFamC1F 28

Division: Division 1 First Instance

Number of paragraphs: 21

Date of hearing: 29 March 2023

Place: Sydney (via videolink)

Solicitor for the Applicant: No appearance

Solicitor for the Respondent: Ms Brake, Joshua Blom Lawyers

Solicitor for the Independent Children's Lawyer: No appearance required
ORDERS

PAC 3622 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS EBRAHIM

Applicant

AND:
MR LAMSAARD

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

MCCLELLAND DCJ

DATE OF ORDER:

29 MARCH 2023

THE COURT ORDERS THAT:
1.Within 28 days of the costs being assessed or agreed, the applicant is to pay the costs of the respondent incurred up to and until 29 November 2022.
2.Within 28 days of the costs being assessed or agreed, the solicitor for the applicant, Mr BB of DD Pty Ltd, is responsible for meeting the costs of the respondent on a party-party basis in respect to costs incurred as and from 30 November 2022 and to avoid doubt, includes legal work for and in connection to appearances on:
(a)30 November 2022;
(b)14 December 2022;
(c)31 January 2022;
(d)6 March 2023;
(e)29 March 2023.

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 the pseudonym Ebrahim & Lamsaard has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR…

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 Ebrahim & Lamsaard (No 2)

Details

AGLC: Ebrahim & Lamsaard (No 2) [2023] FedCFamC1F 209
Case: [2023] FedCFamC1F 209
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Ebrahim & Lamsaard (No 2) involved a dispute regarding the allocation of costs following the dismissal of the mother's application for want of prosecution. The father sought an order for costs, including costs against the mother's solicitor, due to the mother's non-appearance on five separate occasions since 30 November 2022. The central legal issues for the Court were whether the mother's solicitor had engaged in unreasonable conduct and default, justifying a personal costs order against the solicitor, and whether the costs sought by the father were fair, reasonable, and proportionate.

The Court examined the conduct of the mother's solicitor, Mr. BB, who had failed to either attend court or file a Notice of Discontinuance, despite being aware of the upcoming hearings. The Court found that Mr. BB's failure to act constituted unreasonable conduct and default under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The Court reasoned that had Mr. BB notified the Court of his lack of instructions or filed a Notice of Discontinuance, the unnecessary court appearances could have been avoided. The Court also considered the father's submissions regarding the modest means of the mother and the unsuccessful nature of her application, concluding that it would be unjust for the father to bear the costs incurred due to the mother's inaction.

The Court ordered that the mother pay the father's costs up until 29 November 2022, while Mr. BB of DD Pty Ltd was held responsible for the costs incurred from 30 November 2022 onwards, including those related to the five specified court appearances. The Court did not accept the lump sum amount sought by the father for the costs, as it did not provide a breakdown of the costs and did not differentiate between the costs up to 29 November 2022 and those incurred thereafter. The Court's decision was based on the need for the costs to be fair, reasonable, and proportionate, as required by the relevant rules.

Orders