Goyal and Goyal (No 2) - [2019] FamCA 526

FAMILY COURT OF AUSTRALIA

GOYAL & GOYAL (NO. 2)

[2019] FamCA 526

FAMILY LAW – COSTS – where the wife asserts lack of financial capacity – whether the wife should pay the second respondent’s costs – indemnity fixed at $8000

Family Law Act 1975 (Cth) s 117(2), (2A)

Lenova & Lenova (Costs) [2011] FamCaFC 141

Ebbner & Pappas [2014] FamCAFC 229

Bhatt & Acharya (Costs) [2017] FamCAFC 71

APPLICANT:

Mr Goyal

FIRST RESPONDENT:

Ms Goyal

SECOND RESPONDENT:

Mr C Goyal

INDEPENDENT CHILDREN’S LAWYER:

JLM Family Lawyers Pty Ltd

FILE NUMBER:

SYC

6633

2017

DATE DELIVERED:

15 August 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Harper

SOLICITOR FOR THE APPLICANT:

O'Sullivan Legal

COUNSEL FOR THE RESPONDENT:

Self-Represented Litigant

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Reheby

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

JLM Family Lawyers Pty Ltd

Orders

The respondent wife is to pay, by way of costs, the sum of $8,000 to the second respondent paternal grandfather, or as he may otherwise direct, within three months of today’s date.

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 Goyal & Goyal 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 SYDNEY

FILE NUMBER: SYC6633 of 2017

Mr Goyal

Applicant

And

Ms Goyal

Respondent

REASONS FOR JUDGMENT

The matter of Goyal was an application by the second respondent, being the paternal grandfather, for his costs of having been joined in a property dispute proceedings between his son and former daughter-in-law.
The costs sought by the second respondent is an extremely modest sum of $8,000.
To their credit, the parties resolved all property and parenting issues between themselves and the husband’s father at the commencement of the proceedings.
In any application for costs, I must have regard to section 117(2) of the Family Law Act 1975 (Cth) (“the Act”). The primary position under the Act is that each party to the proceedings bears their own costs. However, this is a costs application by a third party who is not a party to the marriage and was joined in proceedings by a party to a marriage, namely the wife.
Section 117(2)[1] provides that:
if, in proceedings under this Act, the court is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by…

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 Goyal and Goyal (No 2)

Details

AGLC: Goyal and Goyal (No 2) [2019] FamCA 526
Case: [2019] FamCA 526
Decision Date: 15 August 2019

CaseChat Overview and Summary

In *Goyal and Goyal (No 2)*, Henderson J of the Federal Circuit and Family Court of Australia considered an application for costs following earlier proceedings between the parties. The dispute concerned the financial contributions and entitlements of the parties, and the role of the second respondent, the paternal grandfather, in the proceedings.

The primary legal issue before the court was the quantum of costs to be awarded to the second respondent, the paternal grandfather, and the basis upon which such an order should be made. This involved determining whether the grandfather was entitled to recover his legal costs from the respondent wife, and if so, in what amount.

Henderson J ordered that the respondent wife pay the sum of $8,000 to the second respondent paternal grandfather by way of costs within three months. This order reflects the court's determination of the appropriate costs to be awarded to the grandfather in the proceedings.

Orders

Orders of the court

The respondent wife is to pay, by way of costs, the sum of $8,000 to the second respondent paternal grandfather, or as he may otherwise direct, within three months of today’s date.

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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