Ghazel and Ghazel

[2016] FamCA 438

FAMILY COURT OF AUSTRALIA

GHAZEL & GHAZEL [2016] FamCA 438

FAMILY LAW – COSTS – Application for costs – Application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Ghazel

RESPONDENT: Mr Ghazel

FILE NUMBER: BRC 1670 of 2008

DATE DELIVERED: 30 May 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 30 May 2016

REPRESENTATION

APPLICANT: In person

SOLICITOR FOR RESPONDENT: Mr P. Hofstee, Hofstee Lawyers

Orders

IT IS ORDERED THAT

1. The oral application made on behalf of the Respondent for an adjournment of today’s proceedings is dismissed.

2. The oral application made on behalf of the Respondent for leave to file and rely upon the Response dated 30 May 2016 and the Affidavit of the Respondent sworn on 30 May 2016, is dismissed.

AND IT IS FURTHER ORDERED THAT

1. The Application in a Case filed 15 April 2016 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ghazel & Ghazel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1670 of 2008

Ms Ghazel

Applicant

And

Mr Ghazel

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The Court has before it an Application in the Case by Ms Ghazel, the Applicant filed, on 15 April 2016;  that Application seeks an order in these terms:

   Full refund of all costs incurred in the proceedings before Hogan J relating to initiating application seeking validity of … marriage, file number BRC1670 of 2008. 

2. The Application for costs is supported by an affidavit from Ms Ghazel, also filed 15 April 2016. 

3. The Application for costs is resisted by the Respondent, whose position is that there should be an order dismissing Ms Ghazel’s Application for costs such that there is no order as to costs and each party is left to bear the consequences of the legislative starting point mandated by s 117(1) of the Family Law Act1975, which provides that, subject to ss (2) and other sections there listed, each party to proceedings under the Act shall bear his or her own costs.

4. Ms Ghazel submits that an order for costs should be made, such that the Respondent bear costs she asserts have been incurred in the course of the proceedings before the Court because she is, in essence, an innocent victim of his choice to marry again – which she asserts he did with the full knowledge of the overseas marriage between them remaining valid.  She makes the submissions, in essence, and in summary, that a refund (to use a term, I think, used in her affidavit) of funds she has spent on proceedings is essential to her future financial stability and welfare; that she has suffered financial loss as a consequence of the Respondent’s actions and she is the party who has borne the costs associated with the proceedings I determined when I dismissed her Application for a declaration of validity of the parties’ overseas marriage.  That determination was the subject of her successful appeal to the Full Court of this Court and was determined by that Court by orders made on 4 March of this year which allowed the appeal, set aside the order I had made and made a declaration in the terms sought by Ms Ghazel.

5. The Full Court has already made orders in relation to the issue of a costs certificate (pursuant to the Federal Proceedings Costs Act) in relation to the costs associated with the appeal. 

6. Paragraph 58 of the Reasons for Judgment delivered by their Honours on 4 March of this year, is as follows:

   Any costs incurred by the parties in the proceedings before Hogan J would be a matter for an application to her Honour.

7. It is, at least in part, as a consequence of their Honours’ comments in that paragraph that there is before me the Application in a Case filed by Ms Ghazel, as I have said, on 15 April of this year.

8. The costs sought by Ms Ghazel are in the vicinity of $32,000.00.  They are as particularised in the Annexure to her affidavit, Annexure “A”, subject to the amendment she outlined orally as a consequence of the quantification of the costs payable as a consequence of the issue of the costs certificate by the Full Court. 

9. So, as reference to the record will make clear, Ms Ghazel informed the Court that there should be an amendment to the figure of $2,000.00 (under the heading Brookman Solicitors Invoice 19 August 2015) such that the sum should be $1910.46 instead of $2,000.00 and there should be a corresponding reduction in the total sought, from that which is shown at the bottom of Annexure “A”.

10. In resisting the Application for an order for costs, the Respondent’s legal representative submitted that the Court would not be persuaded that the circumstances justify the making of an order for costs, taking into account that: each party had an arguable position before the Court at first instance; his client was not obstructive during the conduct of the proceedings I determined when I made the order the subject of the appeal to the Full Court;  neither party was legally-aided;  the issue as between them, because of the factual circumstances in existence, gave rise (and continues to give rise) to a number of conflicting positions;  and that it would be unduly punitive to make an order as sought by the Applicant, because the practical consequences of the same is, in essence, that an order for indemnity costs would be made if the Court were persuaded to quantify the costs in the amount sought by the Applicant.

11. I take into account the submissions made by Ms Ghazel, wherein she acknowledged that the case was an unusual and difficult case.  So much is made clear by the fact that reference to the Reasons for Judgment delivered by the Full Court make it clear that, at that Court’s request, the Commonwealth Attorney-General intervened, was heard in support of Ms Ghazel’s appeal and clearly participated and made submissions in support of the appeal.

12. I am persuaded, therefore – as I think was quite properly acknowledged by Ms Ghazel – that it was an unusual and difficult case. 

13. There is no specific evidence in relation to the financial circumstances of each of the parties to the proceedings, albeit that submissions were made on behalf of each of them about that.  I take into account that one of Ms Ghazel’s bases of opposition to an adjournment of the proceedings being granted was that this would necessitate her taking another day away from work; I therefore conclude that she is in some sort of paid employment to some extent, although there is no evidence as to the return to her from those labours, nor, as I have said, is there evidence as to the Respondent’s current financial position.

14. Neither party is in receipt of Legal Aid. 

15. Ms Ghazel appears on her own behalf today to prosecute her application for costs.  She was legally represented on occasion during the course of the Application before me.

16. I am not persuaded that there is anything in the conduct of the parties to the proceedings in relation to the proceedings that would necessarily persuade that the circumstances justify the making of an order departing from the starting point established by s 117(1) of the Family Law Act 1975.

17. Similarly, I am not persuaded that there is anything before me to establish that the proceedings prosecuted initially by Ms Ghazel, at first unsuccessfully before me, but, then, successfully on appeal to the Full Court, were necessitated by the failure of the Respondent to comply with previous orders of the Court. 

18. I take into account that, in the proceedings before me to which this Application for costs relates, the Respondent was in fact successful and, in a sense, Ms Ghazel wholly unsuccessful, albeit that she has subsequently been successful in the proceedings. 

19. There is nothing to suggest that either party to the proceedings made an offer in writing to the other to settle the proceedings; given the competing positions of the parties in relation to the issue of law that was determined by the Full Court in its determination of the appeal within the “unusual and difficult case” that this particular set of circumstances gives rise to, that is not, it seems to me, unsurprising.

20. I take into account also that, of the costs sought by Ms Ghazel, the sum of $16,320.00 is particularised as having been paid to lawyers (May 2013 – June 2014) for proceedings overseas and not, it seems to me, in relation to the proceedings before this Court under the Family Law Act 1975.  I take into account, also, that the sum of $295.00 particularised as having been paid to meet an invoice dated 1 November 2012, appears to have been for a conference which occurred on 30 October 2012 (relating to, according to its terms, advice on family law matters) – this was more than two years before the Initiating Application I dismissed was filed by Ms Ghazel (on 19 of November 2014).

21. There are a number of other costs particularised, including those which appear to relate to proceedings, which occurred in the UK, between the parties.  In addition, some of the additional costs and expenses seem to relate to matters such as the cost of photocopying, parking and the acquisition of text books. 

22. The circumstances of the case, as I have said, has, I think, quite appropriately, been acknowledged as being “unusual and difficult”. They are such that, taking into account the matters to which I have already referred, I am not persuaded that the circumstances justify the making of an order for costs. I am not persuaded that there are circumstances that justify a departure from the statutory starting point provided by s 117(1) of the Family Law Act 1975 that each party to proceedings under the Act shall bear his or her own costs, noting, as I do, that the costs Application that I am determining relates to the costs of the proceedings before me.

23. For these short reasons, then, I dismiss the Application for costs filed on 15 April 2016.

I certify that the preceding (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 30 May 2016.

Associate:                 

Date:    30 May 2016