FAMILY COURT OF AUSTRALIA
Farrand & Mahdi (No. 2) [2021] FamCA 168
File number(s): BRC 11658/2018 Judgment of: CAREW J Date of judgment: 26 March 2021 Catchwords: FAMILY LAW – COSTS – Adjournment – Where the maternal grandmother contends that the determination of the costs application should be adjourned until after the determination of her appeal – Where the maternal grandmother argues that the granting of the ‘stay’ would avoid both parties incurring potentially unnecessary legal costs – Where costs already incurred in preparation of written submissions – Where hearing occurs in chambers – Where maternal grandmother may exercise her right to appeal against costs order and seek that it be heard at the same time as the appeal – application to adjourn dismissed.
FAMILY LAW – COSTS – Between parties – Where the father seeks an order that the maternal grandmother pay his costs on an indemnity basis – Where the maternal grandmother opposes any order for costs – Whether the maternal grandmother was wholly unsuccessful in the proceedings – Where there is no exceptional circumstance that would warrant costs to be ordered on an indemnity basis – Where there are circumstances justifying the maternal grandmother contributing to the father’s legal costs in a fixed sum within 30 days of the determination of an appeal against the substantive order.
Legislation: Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Cases cited: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Collins & Collins (1985) FLC 91-603
Farrand & Mahdi [2020] FamCA 875
Fitzgerald v Fish sub nom PBF v TRF (FLR) (2005) 191 FLR 294
Genesalio & Genesalio (No 2) [2020] FamCAFC 180
Idoport Pty Ltd v National Australia Bank Limited [2007] NSWSC 23
Jackson & Balen [2009] FamCAFC 131
Kohan and Kohan (1993) FLC 92-340
Latoudis v Casey (1990) 170 CLR 534
Murray & Murray [2020] FamCAFC 293
Parke & the Estate of the Late A Parke (2016) FLC 93-748
Pera & Pera (2008) FLC 93-372
Penfold v Penfold (1980) 144 CLR 311
Prantage v Prantage (2013) 49 Fam LR 197Re Wilcox, Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151
Salt & Salt (No. 2) [2020] FamCA 170
Number of paragraphs: 53 Date of last submission/s: 12 March 2021 Date of hearing: Heard on the papers Place: Brisbane Solicitor for the Applicant L&S Lawyers Counsel for the Respondent Dr Brasch QC Solicitor for the Respondent Murdoch Lawyers ORDERS
BRC 11658/2018 BETWEEN: MS FARRAND
Applicant
AND: MR MAHDI
Respondent
ORDER MADE BY:
CAREW J
DATE OF ORDER:
26 MARCH 2021
THE COURT ORDERS THAT:
1.Ms Farrand contribute to the legal costs and outlays incurred by Mr Mahdi in the sum of $50,000 payable within 30 days of the determination of appeal number NOA76/2020.
2.All outstanding applications be otherwise dismissed.
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…
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- AGLC
- Farrand & Mahdi (No. 2) [2021] FamCA 168
- Case
- [2021] FamCA 168
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether to grant the maternal grandmother's application to adjourn the costs application, and whether to order the maternal grandmother to pay the father's costs, and if so, on what basis. The court was required to consider the purpose of costs orders, the discretion vested in the court under section 117 of the *Family Law Act 1975* (Cth), and the factors relevant to the exercise of that discretion, including the conduct of the parties and whether a party had been wholly unsuccessful.
Carew J dismissed the application for adjournment, reasoning that as the matter was heard in chambers and written submissions had already been filed, an adjournment would not result in cost savings. The court noted that the maternal grandmother's concern about paying costs before her appeal was determined could be addressed by stipulating a payment date after the appeal. The court clarified that costs orders are compensatory, not punitive, and rejected the submission that determining the costs application would undermine public confidence. Regarding the costs order itself, the court found no exceptional circumstances to warrant an indemnity basis for costs, but determined that circumstances justified the maternal grandmother contributing to the father's legal costs.
The court ordered that Ms. Farrand contribute to the legal costs and outlays incurred by Mr. Mahdi in the sum of $50,000, payable within 30 days of the determination of the appeal. All other outstanding applications were dismissed.
Orders
Orders of the court
BRC 11658/2018
BETWEEN:
MS FARRAND
Applicant
AND:
MR MAHDI
Respondent
ORDER MADE BY:
CAREW J
DATE OF ORDER:
26 MARCH 2021
THE COURT ORDERS THAT:
1. Ms Farrand contribute to the legal costs and outlays incurred by Mr Mahdi in the sum of $50,000 payable within 30 days of the determination of appeal number NOA76/2020.
2. All outstanding applications be otherwise dismissed.
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
Ratio Decidendi
Legal Principle Established
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