Gulek & Sidu (No 2) - [2024] FedCFamC2F 1192

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gulek & Sidu (No 2) [2024] FedCFamC2F 1192

File number(s): SYC 2542 of 2024

Judgment of: JUDGE MURDOCH

Date of judgment: 29 August 2024

Catchwords:

FAMILY LAW – COSTS – Application for the father to pay the mother’s costs of an Application for Review – where the father achieved a less desired result at the Review Hearing than before the Senior Judicial Registrar- Whilst any hearing of a review application is to be heard as an original hearing parties should still carefully consider the merits of a review of a Registrar’s decision in circumstances where parties are at risk of costs in the event their review application is unsuccessful – orders for costs made.

Legislation:
Family Law Act 1975 (Cth) s 117(1),(2),(2A)

Federal Circuit and Family Court of Australia Act 2021 ss 190(1),(2) and 191

Federal Circuit and Family Court of Australia (Family Law) Rules2021 rr 1.04, 12.12(4), 12.17

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules2021 (Cth) Schedule 1

Cases cited:
Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225

Kohan & Kohan (1993) FLC 92-340

Lenova & Lenova (Costs) [2011] FamCAFC 141

Munday & Bowman (1997) FLC 92-784

Northern Territory v Sangare (2019) 265 CLR 164

Penfold & Penfold (1980) FLC 90-800; [1980] HCA 4

Phillips & Hansford [2020] FamCAFC 28

Yunghanns & Yunghanns (2000) FLC 93-029; [2000] FamCA 681

Division: Division 2 Family Law

Number of paragraphs: 49

Date of last submission/s: 5 August 2024

Date of hearing: 29 August 2024

Place: Sydney

Solicitor for the Applicant: A&E Lawyers

Solicitor for the Respondent: Buckley Lawyers
ORDERS

SYC 2542 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS GULEK

Applicant

AND:
MR SIDU

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE MURDOCH

DATE OF ORDER:

29 AUGUST 2024

THE COURT ORDERS THAT:
1.By no later than 4:00 pm on 29 November 2024 the Father shall pay the costs of the Mother at scale in accordance with Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) and fixed in the sum of $4,926.
2.The Application in a Proceeding filed 29 July 2024 and Response thereto filed 6 August 2024 is 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 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in…

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 Gulek & Sidu (No 2)

Details

AGLC: Gulek & Sidu (No 2) [2024] FedCFamC2F 1192
Case: [2024] FedCFamC2F 1192
Decision Date: 29 August 2024

CaseChat Overview and Summary

In the case of Gulek & Sidu (No 2), the parties were Ms Gulek, the applicant, and Mr Sidu, the respondent. The dispute centred around the costs associated with an Application for Review, where the father's outcome at the Review Hearing was less favourable than the initial decision made by the Senior Judicial Registrar. The matter was heard in the Federal Circuit and Family Court of Australia (Division 2). The court was required to decide whether the father should bear the mother's costs for the Review Application and, if so, to what extent.

The legal issues before the court included the appropriateness of incurring costs for a review application, the standard of proof required to justify such a review, and the potential consequences for parties who undertake a review without adequate consideration of its merits. The court had to weigh the merits of the review application against the risk of incurring costs if the application was unsuccessful. The court emphasised that while a review hearing is treated as an original hearing, parties must carefully assess the merits of a review, particularly when costs may be awarded against them in the event of an unsuccessful application.

Judge Murdoch found that the father should bear the costs of the mother's Application for Review. The court reasoned that the father's decision to proceed with the review application without sufficient justification or evidence of changed circumstances warranted an award of costs against him. The court ordered that the father pay the mother's costs at scale and fixed in the sum of $4,926, to be paid by 29 November 2024. The court dismissed the application in a proceeding and the corresponding response, affirming the previous decision made by the Senior Judicial Registrar.

Orders

Orders of the court

SYC 2542 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS GULEK

Applicant

AND:

MR SIDU

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE MURDOCH

DATE OF ORDER:

29 AUGUST 2024

THE COURT ORDERS THAT:

1. By no later than 4:00 pm on 29 November 2024 the Father shall pay the costs of the Mother at scale in accordance with Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) and fixed in the sum of $4,926.

2. The Application in a Proceeding filed 29 July 2024 and Response thereto filed 6 August 2024 is 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 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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 2542 of 2024
Judgment of:	JUDGE MURDOCH
Date of judgment:	29 August 2024
Catchwords:	FAMILY LAW – COSTS – Application for the father to pay the mother’s costs of an Application for Review – where the father achieved a less desired result at the Review Hearing than before the Senior Judicial Registrar- Whilst any hearing of a review application is to be heard as an original hearing parties should still carefully consider the merits of a review of a Registrar’s decision in circumstances where parties are at risk of costs in the event their review application is unsuccessful – orders for costs made.
Legislation:	Family Law Act 1975 (Cth) s 117(1),(2),(2A) Federal Circuit and Family Court of Australia Act 2021 ss 190(1),(2) and 191 Federal Circuit and Family Court of Australia (Family Law) Rules2021 rr 1.04, 12.12(4), 12.17 Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules2021 (Cth) Schedule 1
Cases cited:	Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 Kohan & Kohan (1993) FLC 92-340 Lenova & Lenova (Costs) [2011] FamCAFC 141 Munday & Bowman (1997) FLC 92-784 Northern Territory v Sangare (2019) 265 CLR 164 Penfold & Penfold (1980) FLC 90-800; [1980] HCA 4 Phillips & Hansford [2020] FamCAFC 28 Yunghanns & Yunghanns (2000) FLC 93-029; [2000] FamCA 681
Division:	Division 2 Family Law
Number of paragraphs:	49
Date of last submission/s:	5 August 2024
Date of hearing:	29 August 2024
Place:	Sydney
Solicitor for the Applicant:	A&E Lawyers
Solicitor for the Respondent:	Buckley Lawyers

SYC 2542 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS GULEK Applicant
AND:	MR SIDU Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE MURDOCH
DATE OF ORDER:	29 AUGUST 2024