Haniyya & Terentiy (No 2) - [2024] FedCFamC1A 1

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Haniyya & Terentiy (No 2) [2024] FedCFamC1A 1

Appeal from: Terentiy & Haniyya [2023] FedCFamC2F 832

Appeal number: NAA 204 of 2023

File number: SYC 759 of 2020

Judgment of: CHRISTIE J

Date of judgment: 18 January 2024

Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL –COSTS – Where the appeal was wholly unsuccessful – Application for costs by the respondent to the appeal – Where the appellant opposes the quantum of costs sought by the applicant for costs – Where there are justifying circumstances to make a costs order – Where the costs sought are not party/party.

Legislation:
Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.23 and r 13.53

Cases cited:
Markosa & Markosa (2011) 46 Fam LR 598; [2011] FamCA 833

Nada & Nettle (2014) FLC 93-612; [2014] FamCAFC 207

Penfold v Penfold (1980) 144 CLR 311

Haniyya & Terentiy [2023] FedCFamC1A

Number of paragraphs: 27

Date of last submission: 21 December 2023

Date of hearing: Heard in chambers on the papers

Place: Sydney

Solicitor for the Applicant: Reid Family Lawyers

Solicitor for the Respondent: Browns the Family Lawyers
ORDERS

NAA 204 of 2023
SYC 759 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR TERENTIY

Applicant

AND:
MS HANIYYA

Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

18 JANUARY 2024

THE COURT ORDERS THAT:
1.The appellant mother pay the applicant father’s costs of and incidental to the appeal, fixed in the sum of $16,000, within 28 days.

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 a pseudonym Haniyya & Terentiy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J

On 21 November 2023 I heard an appeal brought from final parenting orders made on 7 July 2023. On 1 December 2023 I delivered judgment dismissing the appeal (Haniyya & Terentiy [2023] FedCFamC1A 210).
At the appeal hearing, the respondent sought that the appellant pay his costs in the event the appeal failed. The respondent foreshadowed that he sought to rely on collateral information in support of his application for costs. The appellant did not resist a costs order in the event of the…

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 Haniyya & Terentiy (No 2)

Details

AGLC: Haniyya & Terentiy (No 2) [2024] FedCFamC1A 1
Case: [2024] FedCFamC1A 1
Decision Date: 18 January 2024

CaseChat Overview and Summary

This case involved an appeal in family law matters between Mr. Terentiy, the applicant, and Ms. Haniyya, the respondent. The appeal was wholly unsuccessful, prompting the respondent to apply for costs against the appellant. The appellant opposed the quantum of costs sought by the respondent, arguing against the full amount requested. The primary legal issue before the court was whether the respondent was entitled to costs and, if so, in what amount. The court had to consider the financial circumstances of both parties, the outcome of the appeal, and any offers of settlement that had been made.

The court examined the financial circumstances of both parties, finding that the respondent appeared to be in a better financial position than the appellant. The appellant was not in receipt of legal aid and had a lower taxable income compared to the respondent. The court noted that the appellant had not opposed the making of a costs order, despite the financial disparity. The court also considered that the appellant had been wholly unsuccessful in the appeal. Furthermore, an offer of settlement was made by the respondent that, if accepted, would have altered the outcome of the appeal. The appellant declined this offer, which the court accepted as evidence of the respondent's willingness to resolve the matter amicably.

Based on the financial disparity, the wholly unsuccessful outcome of the appeal, and the offer of settlement, the court found justifying circumstances to make a costs order. The court did not find it necessary to be satisfied that all the factors enumerated in section 117(2A) of the Family Law Act 1975 (Cth) were engaged before making the order. The court ordered that the appellant pay the respondent's costs of and incidental to the appeal, fixed in the sum of $16,000, within 28 days. The form of the order was subject to entry in the court's records, with provisions for potential review or variation as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

NAA 204 of 2023

SYC 759 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR TERENTIY

Applicant

AND:

MS HANIYYA

Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

18 JANUARY 2024

THE COURT ORDERS THAT:

1. The appellant mother pay the applicant father’s costs of and incidental to the appeal, fixed in the sum of $16,000, within 28 days.

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.

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

It is not necessary for a court to be satisfied that all of the factors enumerated in s 117(2A) of the Act are engaged before an order for costs is made (Markosa & Markosa (2011) 46 Fam LR 598).CONSIDERATION Of those circumstances in s 117(2A) of the Act, the applicant for costs relies upon the financial circumstances of the parties, the appellant being wholly unsuccessful in the appeal proceedings, and an offer of settlement. Neither party was in receipt of legal aid in the appeal proceedings. The applicant for costs annexed to his submissions his Notices of Assessment from 2022 and 2023, indicating a taxable income of $79,361 and $54,991 respectively. The appellant asserts in her financial statement that she receives a total average weekly income of $1,173, has weekly expenditure of $1,161 and holds $14,056 in bank accounts ($10,068 being in a bank account in the name of the parties’ child). The appellant’s draft tax return for 2023 indicated a total taxable income of $24,283 and a 2022 tax return indicated a total taxable income of $23,890. The applicant for costs submits that it is relevant to the appellant’s financial circumstances and capacity to meet a costs order that she has taken two trips to Country G in the last 14 months for various periods of time and has met her costs of the appeal. In any event, any apparent inability to meet a costs order is not a bar to a costs order being made (Nada & Nettle (2014) FLC 93-612). I accept that the applicant for costs appears to be in a better financial position than the appellant. The appellant does not oppose the making of a costs order notwithstanding the disparity. It is uncontroversial that the appellant was wholly unsuccessful in the appeal. The applicant for costs annexes to his submissions a letter of offer from his solicitors dated 27 October 2023: (a)Proposing that Order 6(d) of the final orders (which provided that the child spend time with the mother “[e]ach year for [Lunar] New Year, at times to be agreed”) be replaced with an order that specified the time the child would spend with the mother on Lunar New Year; and(b)Offering to consent to Order 6 sought by the appellant, which provided that each parent would be entitled to attend extra-curricular school sporting and cultural activities for the child irrespective of in whose care the child is on that day. The applicant for costs asserted this (if accepted) would have caused Ground 2 of the appeal to fall away. The appellant on 30 October 2023 declined the offer and her legal representative advised the applicant for cost’s legal representative:I do not agree that ground 2 “falls away”. Rather, the parties would consent to the appeal being allowed as to ground 2 and to having orders 5 and 6 of the Amended Notice of Appeal made. The applicant for costs submits that the appellant “made no genuine attempt to resolve any aspect of the Appeal, notwithstanding being put on notice by the Respondent that the Appeal had no merit”. I am unable to find that the appellant made no genuine attempt to resolve any aspect of the appeal. However, I accept that an offer of compromise was made by the father which, if accepted by the mother, would have seen her obtain at least one order that she sought. As it eventuated, the appellant obtained no order that she sought and was wholly unsuccessful.

NAA 204 of 2023 SYC 759 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR TERENTIY Applicant
AND:	MS HANIYYA Respondent

Appeal from:	Terentiy & Haniyya [2023] FedCFamC2F 832
Appeal number:	NAA 204 of 2023
File number:	SYC 759 of 2020
Judgment of:	CHRISTIE J
Date of judgment:	18 January 2024
Catchwords:	FAMILY LAW – APPLICATION IN AN APPEAL –COSTS – Where the appeal was wholly unsuccessful – Application for costs by the respondent to the appeal – Where the appellant opposes the quantum of costs sought by the applicant for costs – Where there are justifying circumstances to make a costs order – Where the costs sought are not party/party.
Legislation:	Family Law Act 1975 (Cth) s 117 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.23 and r 13.53
Cases cited:	Markosa & Markosa (2011) 46 Fam LR 598; [2011] FamCA 833 Nada & Nettle (2014) FLC 93-612; [2014] FamCAFC 207 Penfold v Penfold (1980) 144 CLR 311 Haniyya & Terentiy [2023] FedCFamC1A
Number of paragraphs:	27
Date of last submission:	21 December 2023
Date of hearing:	Heard in chambers on the papers
Place:	Sydney
Solicitor for the Applicant:	Reid Family Lawyers
Solicitor for the Respondent:	Browns the Family Lawyers

ORDER MADE BY:	CHRISTIE J
DATE OF ORDER:	18 JANUARY 2024