Manesh and Manesh (No. 2)
[2020] FamCA 904
•28 October 2020
FAMILY COURT OF AUSTRALIA
| MANESH & MANESH (NO. 2) | [2020] FamCA 904 |
| FAMILY LAW – APPLICATION TO STAY PROCEEDINGS – pending appeal – no basis shown. FAMILY LAW – COSTS APPLICATION – indemnity costs ordered. |
| Family Law Act 1975 (Cth) ss 68Q, 117 Family Law Rules 2004 (Cth) r 18.01 |
| Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Alexander v Cambridge Credit CorporationLtd (1985) 2 NSWLR 685 Armington & Armington and Ors [2020] FamCA 765 Colgate–Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Manesh & Manesh [2020] FamCA 792 Federal Commissioner of Taxation v Myer Emporium Ltd [No. 1] (1986) 160 CLR 220 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) Fam LR 123 Goodridge & Beadle [2019] FamCA 786 Gronow & Gronow (1979) 144 CLR 513 Harlen & Hellyar [2020] FamCA 413 Hearl & Digby [2020] FamCA 474 House v King (1936) 55 CLR 499 Jackson & Balen [2009] FamCAFC 131 Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 Mallet v Mallet (1984) 156 CLR 605 Medlow & Medlow (2016) 54 Fam LR 389 Norbis v Norbis (1986) 161 CLR 513 Prantage & Prantage [2013] FamCAFC 105 |
| APPLICANT: | Ms Manesh |
| RESPONDENT: | Mr Manesh |
| INDEPENDENT CHILDREN’S LAWYER: | Sue Macgregor |
| FILE NUMBER: | MLC | 8955 | of | 2019 |
| DATE DELIVERED: | 28 October 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Wilson J |
| HEARING DATE: | 16 October 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms S. Hession |
| SOLICITOR FOR THE APPLICANT: | Freeman Family Law |
| COUNSEL FOR THE RESPONDENT: | Not Applicable |
| SOLICITOR FOR THE RESPONDENT: | Not Applicable |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Not Applicable |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Macgregor Barristers and Solicitors |
Orders
I order the respondent to pay the applicant the sum of $14,440 by way of indemnity costs on or before 4:00pm on 27 November 2020.
I dismiss the respondent’s stay application.
The wife and the ICL must file and serve any submissions in relation to the costs of and incidental to the stay application by 4:00pm on Wednesday 4 November 2020.
Mr Manesh must file and serve any submissions in response by 4:00pm on Wednesday 11 November 2020.
The question of costs of and incidental to the stay application will be decided on the papers.
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 Manesh & Manesh 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 MELBOURNE |
FILE NUMBER: MLC 8955 of 2019
| Ms Manesh |
Applicant
And
| Mr Manesh |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These reasons address –
a)costs for which the parties were given leave to file submissions pursuant to paragraph 2 of my orders made on 23 September 2020; and
b)the stay application advanced by the respondent in his application in a case filed on 8 October 2020 returnable on 16 October 2020.
The respondent sought a stay of my making a costs order. Strictly speaking, when I heard the respondent’s application in a case filed 8 October 2020 no costs order had been made so the application to stay a costs order then not pronounced was misconceived. In order to complete the task of determining all issues that were the subject of my reasons in Manesh & Manesh,[1] I am required to determine the costs application that followed my determination on 23 September 2020 and only after that was done was I required to consider any stay application.
[1][2020] FamCA 792.
In these reasons I address in order the costs associated with the hearing on 17 September 2020 and then the stay application.
Synopsis
For the reasons that follow, in my judgment –
a)costs must be paid by the respondent of and incidental to the application I determined on 23 September 2020, those costs being ordered on an indemnity basis;
b)I dismiss the respondent’s stay application; and
c)I will hear the parties on the question of costs of the dismissed stay application.
Costs
The respondent was wholly unsuccessful in his application before me. He sought orders for time with his daughter pending the trial of this proceeding. No orders presently apply for him to have time with his daughter. By reason of family violence I ordered him to have no time with his daughter pending the hearing and determination of this proceeding. On any view he was wholly unsuccessful before me.
On behalf of the wife, an application for costs was made, such costs to be assessed on an indemnity basis. The costs the wife sought addressed the respondent’s application in a case filed 14 August 2020 and his amended application in a case filed 4 September 2020.[2]
[2] The submissions prepared by Ms Hession of counsel mentioned in paragraph 24(c) a second application in a case filed 14 September 2020 but that seemed to be an error as only one was before me on that date.
It became necessary to explain the two applications brought by the respondent.
The narrative commenced with litigation in the Federal Circuit Court of Australia. Ms Hession’s written submissions very helpfully traced the chronological evolution of this litigation so it is convenient to distil the history in the terms offered by Ms Hession. It was as follows –
a)the wife commenced a proceeding in the Federal Circuit Court of Australia seeking spousal maintenance and financial matters on 9 August 2019;
b)the husband’s response filed 2 October 2019 introduced parenting issues;
c)on 8 October 2020 her Honour Judge Harland made consent parenting orders pursuant to which the parties agreed to attend upon Dr B for the preparation of a family report;
d)Dr B made arrangements for interviews relevant to the family report to be conducted on 9 November 2019;
e)the respondent failed to attend that interview yet the mother and the child did attend upon Dr B;
f)Dr B prepared his family report dated 26 November 2019 in which he devoted several pages to recording the steps he took in his attempt to arrange for the father to attend upon him, none of which endeavours being successful; and
g)on 4 December 2019 her Honour Judge Harland appointed an Independent Children’s Lawyer (“ICL”), reserved the wife’s costs and otherwise adjourned the proceeding to 3 April 2020 (subsequently administratively adjourned to 4 May 2020).
Between 20 December 2019 and 5 June 2020 several interlocutory applications were filed or steps taken. They were –
a)the husband’s application in a case filed 20 December 2019 seeking orders for the daughter to spend time with him and the paternal grandparents;
b)the husband filed a noticed of discontinuance of that application on 13 February 2020;
c)the wife’s application in a case filed 26 March 2020 pursuant to which she sought a partial property settlement of $120,000;
d)on 5 June 2020 the respondent filed a response pursuant to which he sought orders concerning parental responsibility, schooling and medical input and a declaration under s 86Q of the Family Law Act;
e)he amended his response at 4:33pm on the same day, 5 June 2020; and
f)on 25 June 2020 her Honour Judge Harland determined the wife’s application granting the wife the orders she sought and otherwise dismissing all other applications; and
g)her Honour Judge Harland then transferred the proceeding to this court.
The proceeding was then received in this court and a new case number assigned to it. Thereafter –
a)on 23 July 2020 the respondent filed a notice of appeal in relation to paragraph 3, 4 and 5 of the orders made by her Honour Judge Harland on 25 June 2020;
b)while that appeal was pending on 14 August 2020 the respondent filed an application in a case seeking orders for his spending time with the daughter , that application having very close correspondence to the orders that her Honour Judge Harland had earlier dismissed;
c)the wife filed a response on 1 September 2020 seeking orders dismissing the respondent’s application in a case and she sought orders that the father have no time with the child, that he not file any further applications without leave of the court and she sought costs on an indemnity basis;
d)on 4 September 2020 the husband filed an amended application in a case pursuant to which he sought different orders for him to spend time with the daughter and communicate with her and the parties to attend counselling;
e)on 7 September 2020 Senior Registrar Hoult dismissed all applications and ordered costs against the husband in favour of the wife and the ICL;
f)the husband failed to withdraw his notice of appeal in accordance with an assurance he gave Senior Registrar Hoult on 7 September 2020;
g)on 14 September 2020 the respondent applied to review the orders made by Senior Registrar on 7 September 2020;
h)in his review application the respondent once again sought orders for him to spend time with the daughter and other issues;
i)on 17 September 2020 the respondent’s review application came before me pursuant to rule 18.10(1) of the Family Law Rules with the consequence was that the orders made by Senior Registrar Hoult were disregarded and the matter commenced afresh;
j)on 17 September 2020 and prior to the respondent embarking upon his application for the review of Senior Registrar’s orders, the respondent filed an amended notice of appeal effectively discontinuing his appeal against the parenting orders made by her Honour Judge Harland;
k)on 23 September 2020 I handed down my reasons for judgment directing the parties to file submissions on costs; and
l)all parties filed submissions on costs.
The wife’s contention under s 117(2)
The wife submitted that circumstances existed for the purpose of s 117(2) enlivening a consideration of costs that went beyond the statement in s 117(1). The wife needed to demonstrate the application of one of the elements of the various subsections in s 117(2A). She did not need to demonstrate the existence of more than one of those factors as was held in Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish.[3]
[3] (2005) Fam LR 123.
The wife relied mainly on s 117(2A)(c) and (e).
So far as s 117(2A)(c) was concerned, she relied on the matters set out below as demonstrating that costs should be ordered against the respondent in view of his conduct of the proceeding. The wife submitted –
a)the respondent’s conduct was reprehensible;
b)after her Honour Judge Harland made orders for the engagement of Dr B and after Dr B endeavoured to have the father attend a conference with Dr B, the father failed to attend;
c)the respondent then filed an application in a case on 20 December 2019 seeking parenting orders causing the wife to incur costs to oppose that application only to find that the respondent discontinued that application in a case;
d)over the course of nine months between 20 December 2019 and 14 September 2020 the respondent filed seven interlocutory applications, namely –
i)application in a case filed 20 December 2019;
ii)response to an application in a case filed 28 May 2020;
iii)response to an application in a case filed 5 June 2020;
iv)amended response to an application in a case filed 5 June 2020;
v)application in a case filed 14 August 2020;
vi)amended application in a case filed 4 September 2020; and
vii)application in a case filed 14 September 2020.
e)save for the 20 December 2019 application which was discontinued by the respondent prior to its hearing and is now the subject of a reserved costs order in favour of the wife, all of those applications described in the immediately preceding subparagraph were unsuccessful;
f)the respondent filed a notice of appeal that he told the Senior Registrar would be withdrawn yet he did not do so until I told him that I would not deal with his application while his appeal on the very same issue was pending; and
g)on 17 September 2020 a large amount of court time was lost while the respondent dealt with appeal registry staff ultimately leading to the respondent filing an amended notice of appeal the effect of which was to abandon his appeal on parenting issues.
So far as s 117(2A)(e) was concerned, the wife contended that the respondent had been wholly unsuccessful on the application before me.
The wife’s counsel brought to my attention the 2013 decision in Prantage & Prantage[4] in which a particular appeal court of this court took the view that “it would be most unsettling if we purported to depart from the existing practice” of ordering costs on a party/party basis. I do not consider that the observation there captured represents a prohibition on an order being made for the payment under s 117(2) of a costs order on an indemnity basis. Indeed, the court in Medlow & Medlow[5] permits an indemnity costs order being made.
[4] [2013] FamCAFC 105.
[5] (2016) 54 Fam LR 389.
Over several recent decisions including Goodridge & Beadle (No 2),[6] Harlen & Hellyar (No 2),[7] Hearl & Digby[8] and Armington & Armington and Ors (No. 2),[9] I have descended to very great detail to explain in what circumstances an order for indemnity costs may validly be made. Applying Colgate–Palmolive Co v Cussons Pty Ltd[10] the test is conventionally described in the following terms–
Costs on an indemnity basis may be awarded –
a)where a party made allegations of fraud knowing them to be false or where that party made irrelevant allegations of fraud;
b)where evidence of misconduct existed causing loss of time to the court and the other parties;
c)whether the proceeding was commenced for some ulterior motive;
d)whether the proceeding was commenced or continued with wilful disregard of known facts or clearly established law;
e)where allegations were made that ought never to have been made;
f)where the proceeding was unduly prolonged by groundless contentions; and
g)where there was an imprudent refusal of an offer of compromise.
[6] [2019] FamCA 786.
[7] [2020] FamCA 413.
[8] [2020] FamCA 474.
[9] [2020] FamCA 765.
[10] (1993) 46 FCR 225.
Here, several of the propositions canvassed in Colgate–Palmolive Co v Cussons Pty Ltd were enlivened. The wife submitted on this application for the husband to have time with the child (which I dismissed) as being an application that should never have been made. There is force in that submission. The respondent has proceeded for some time on the basis that Dr B was wrong in his recommendations by reason of Dr B not interviewing the respondent. But the respondent was wrong in that contention as I found in my reasons in the judgment from which the respondent now appeals. Dr B specifically recognised that the respondent did not attend the interview. Nevertheless Dr B informed himself of relevant information. Dr B relied heavily on information taken from his discussions with the daughter. I canvassed that in paragraphs 41 to 50 of my reasons.
Yet in this litigation the father is unwilling to accept anyone telling him that reliance may properly be placed on Dr B’s report. Personally, I found Dr B’s report to have been balanced, considered and accurate. Conversely, the father has been obsessive in his conduct of this litigation in refusing to acknowledge that it was open to her Honour Judge Harland, to Senior Registrar Hoult and to me to take into consideration the evidence imparted by Dr B especially where it bears up the expressed wishes of the daughter. The respondent has proceeded in every application in this litigation in which he seeks time with his daughter on the presumption that Dr B is wrong. In the course of the many applications the respondent has made for time with the daughter the respondent refuses to accept that the court is permitted to act protectively towards the child and on an interlocutory application, to accept without deciding, that there may be merit in Dr B’s view.
The respondent has brought a number of applications since the judgment of her Honour Judge Harland each time seeking to re-agitate his failed application for time with his daughter. The daughter does not want time with her father. The father refuses to accept that. His repeat applications for the same relief have driven the wife to incur costs that she need not have expended. She should not have been forced to bear the burden of that situation without recompense.
Her Honour Judge Harland dismissed the respondent’s application for time with his daughter. So did Senior Registrar Hoult. So did I. The respondent should not have brought the review of the Senior Registrar’s order. In my view, his failure on that application exposed him to an indemnity costs order. I make such an order.
In schedule A to her submissions on costs Ms Hession produced an itemised total of costs of and incidental to events in and after 17 August 2020. The total costs accorded with the fees agreement between the wife and Graeme Paul Freeman of Freeman Family Law. In his affidavit made 5 October 2020 Mr Freeman exhibited the fees agreement between his firm and the wife. Schedule A to the written submissions of wife, prepared in the name of Mr Freeman’s firm, identified costs and disbursements on an indemnity basis of $7932 (solicitor and client fees) and $6508 (disbursements, mainly in counsels’ fees) aggregating to $14,440.
In my view it is proper to make an order under s 117(2) requiring the respondent, on or before 4:00pm on 20 November 2020, to pay the applicant’s costs assessed on an indemnity basis in the sum of $14,440.
In making that order I have considered the contentions urged by the respondent in his affidavit of 7 October 2020. So far as paragraph 27 of that affidavit was concerned, let me state the following –
a)the respondent is not legally represented and he has encountered enormous difficulty in debating and adducing evidence in relation to issues squarely relevant to each application before the court since the decision of her Honour Judge Harland;
b)he persists in his contentions that the wife is alienating the daughter from the respondent;
c)he erroneously describes as a denial of procedural fairness any opportunity he may have to spend time with the daughter, mistakenly submitting, having regard to the family violence perpetrated by him in this case, that he has some entitlement, on procedural fairness grounds, to see his daughter; and
d)he accepted that he has been wholly unsuccessful in this case.
I did not find those submissions advanced by the respondent helpful nor valid.
The respondent persisted in paragraph 30(a) of his 7 October 2020 affidavit in contending that the wife was unreasonably refusing to allow him time with the daughter. That was not the issue. The family consultant recommended against the respondent having time with the daughter. Her Honour Judge Harland dismissed the respondent’s application for time with the daughter. So did Senior Registrar Hoult. But that did not deter the respondent. He applied to me. That application was dismissed. Undeterred again, he has applied for appellate intervention. That is his right. He may succeed. It is not for me to speculate in that. However, it does remain as part of my judicial duty of conclude all orders in relation to my determination in Manesh & Manesh,[11] the remaining issues being costs.
[11] [2020] FamCA 792.
The ICL’s costs fell to be considered in a peculiar light. Ms Macgregor, the ICL, submitted that she had no submissions to make on the stay application and her submissions on costs were less than illuminating. She submitted –
a)the ICL was required to appear before me on 17 September and 23 September 2020;
b)the ICL is subject to a grant of legal assistance for those two appearances; and
c)the respondent was wholly unsuccessful in his applications before me.
Helpful as that may have been, it did not amount, in terms, to an application for costs, let alone one payable on an indemnity basis. Under those circumstances I make no order in relation to the ICL’s costs.
The Stay Application
Time and again appeal courts have stated that two important principles operate when an appellant chooses to appeal. First, the person who has obtained the judgment appealed against is entitled to presume that the judgment is correct and, as a corollary to that, the person who has obtained the judgment is entitled to the benefit of that judgment. Second, the mere filing of an appeal is insufficient to grant a stay. To that end, any application for a stay must be made bona fide, that is to say, it must not be made as a tactic or as a weapon to thwart the holder of the judgment enjoying the benefit of the judgment.
In two decisions of the Full Court of this court,[12] both in the year 2009, statements of principle were made concerning the proper approach to be adopted in an application for a stay. Pursuant to the Family Law Rules, the stay application must be heard by the judge who pronounced the orders against which the appeal has been filed. If the trial judge refuses the stay application, the appellant has his, her or its remedies before the Full Court. It is utile to quote the statement of principle as it was set out in Jackson & Balen –
[12]Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 and Jackson & Balen [2009] FamCAFC 131.
The principles to be applied in hearing a stay application pending an appeal are well settled (see Federal Commissioner of Taxation v Myer Emporium Ltd [No. 1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit CorporationLtd (1985) 2 NSWLR 685; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681). Those authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
·the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
·a person who has obtained a judgment is entitled to the benefit of that judgment;
·a person who has obtained a judgment is entitled to presume the judgment is correct;
·the mere filing of an appeal is insufficient to grant a stay;
·the application must be bona fides;
·a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;
·a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
·some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case.
Ms Macgregor submitted that she did not wish to be heard on the stay application.
Ms Hession on behalf of the wife opposed the stay application. Both Ms Hession and Ms Macgregor argued, and to my mind most compellingly, that this case cries out for a trial yet with interlocutory skirmishing including this interlocutory appeal, the respondent continues to put obstacles in the way of determining the contentious issues at trial. I agree.
The applicant for a stay must demonstrate that he has an arguable case. That involves a preliminary examination of the proposed grounds of appeal. The applicant must also demonstrate that the application is bona fide. In the passages below I have examined the grounds of appeal. However at this juncture it is necessary to raise the bona fides of this application. I raised with Mr Manesh whether this latest application was nothing more than the latest in a collection of applications that he brought in order to vex the mother and to harangue the daughter about his ongoing grievance about alienation. Naturally, the stay applicant denied any such suggestion, asserting that he genuinely wished to have time with his daughter effective forthwith and that he disputed the conclusions reached by Dr B. It seemed to me that such a contention amounted yet again to the very same propositions as he advanced before her Honour Judge Harland, before Senior Registrar Hoult and before me, all of whom rejected his applications. He now wishes to chance his arm on the very same issue, but this time before the appeal court. I take the view that rather than his being bona fide on this stay application, the stay applicant is obsessed with a belief in his entitlement to the orders he seeks.
Next, I explored with him what the practical effect of a stay order, if granted, would be. It might stay my order that he has no time with his daughter pending the hearing and determination of the trial of this proceeding. But that will not gain for him the order he seeks of having time with his daughter. No current order is in force for him to have time with his daughter, not even supervised time. One wonders how the stay – even if granted – gained for Mr Manesh the ultimate goal he seeks.
According to the eighth proposition recorded in Jackson & Balen,[13] some preliminary assessment of the strength of the proposed appeal must be undertaken. This being an interlocutory appeal, the applicant for the stay requires leave. It is not appropriate for me as the Justice against whose decision the appeal is brought to speculate about whether leave will be given. That is a matter for other eyes. My comments focus on the strength of the grounds of appeal. The stay applicant divided his assault on my judgment into two parts. The first collection of grounds related to paragraph 1 of my orders. The second collection of grounds related to paragraph 2 of my orders. Mr Manesh told me he was most concerned with a stay of paragraph 2 of my orders. In view of the observations made in the earlier passages of these reasons in which I have made orders requiring Mr Manesh to pay the wife’s indemnity costs, he must be taken to be contending that he is particularly anxious about being required to pay those indemnity costs only to find that those costs orders are reversed on his successful appeal. He admitted as much in his submissions before me on 16 October 2020.
[13] [2009] FamCAFC 131.
In his complaint about paragraph 1 of my orders Mr Manesh asserts that I acted on a wrong principle. He is not legally qualified so his overall thesis was bold, to say the least. At all events, he asserted that I gave “excessive weight to the family report” and that I allegedly failed to give appropriate weight to the alienation of the father. This ground does no more than repeat his overall contentions in this case about the mother alienating the daughter from him and that the family report writer did not interview him.
In my reasons I went to enormous lengths to explain that there was available evidence of family violence committed by the stay applicant and that Dr B did in fact have regard to the father’s evidence, recognising that it can best be tested at trial.
All allegations must – repeat, must – be tested at trial. Far from acting on a wrong principle, I have applied the provisions under the Family Law Act concerning the best interests of the child (not the wishes of the parent) in making the orders I made in paragraph 1 of my orders. Ground 1 is devoid of merit.
Under the second ground of the attack on paragraph 1 of my orders, the stay applicant said I was influenced by extraneous or irrelevant matters. He said I gave inappropriate weight to certain views of DHHS and to certain submissions of the ICL. To the contrary. It was relevant for me to take both into account. To do otherwise would amount to my failing to take into account relevant considerations, a phenomenon antithetical to the proper exercise of judicial discretion, as canvassed in such lead High Court authorities such as House v The King,[14] Mallet v Mallet,[15] Norbis v Norbis,[16] and Gronow & Gronow[17] to name a few.
[14](1936) 55 CLR 499.
[15] (1984) 156 CLR 605.
[16] (1986) 161 CLR 513.
[17] (1979) 144 CLR 513.
The second ground of appeal is devoid of merit.
Under the third ground of appeal the stay applicant asserted a point not argued before me. It was devoid of merit.
Under the fourth ground of appeal the stay applicant made a collection of assertions on an issue that is central to his main contention in this entire litigation, namely, alienation. He said I failed to take into account his evidence on the alienation issue. To my mind, this ground highlights how Mr Manesh simply will not abide the decision of the umpire. He must, but fails to, accept that his contentions about alienation must await the trial of this proceeding. If the evidence of family violence is proved at trial that will be important in any consideration of the proper orders to be made until the daughter attains her majority. I reject Mr Manesh’s assertion that I failed to take into account relevant matters. It has yet to be proved to the requisite degree that the mother is alienating the daughter. If the allegations of family violence are proved, it may also transpire that the evidence reveals that the mother acted appropriately in attempting to protect her child from the consequences of family violence. Mr Manesh seems unwilling to accept that such a conclusion may be open on the evidence.
Ground four is devoid of merit.
Under the fifth ground, Mr Manesh asserted that I placed inappropriate weight on certain relevant matters. Those allegations are set out in paragraph 20-24 of his notice of appeal. Each is replicated elsewhere in his grounds. None has merit.
Under ground 2 Mr Manesh complained that I failed to apply s 117(1) of the Family Law Act. In the passages above I have explained why not only is s 117(2) properly invoked but how the mother is entitled to an order for costs assessed on an indemnity basis. When he filed his notice of appeal against my orders he did not have the benefit of my reasons for ordering indemnity costs against him. He now does.
Ground 2 is devoid of merit.
I dismiss this stay application.
Ms Hession has sought an order for costs of and incidental to this stay application, contending that this stay application ought never to have been brought and that instead the father should have focused on getting this case to trial so that the real issues in dispute can be determined. There is considerable force in that submission.
I am willing to entertain a debate about the costs of and incidental to this stay application, at which time I will determine whether an order under s 117(2) should be made having regard to the matters in s 117(2A) or whether an order under s 117(1) is more appropriate.
To that end, I direct –
a)the wife and the ICL are to file and serve any submissions in relation to the costs of and incidental to this stay application by 4:00pm on Wednesday 4 November 2020; and
b)Mr Manesh is to file and serve any submissions in response by 4:00pm on Wednesday 11 November 2020.
Conclusions
I order the respondent to pay the applicant the sum of $14,440 by way of indemnity costs on or before 4:00pm on 27 November 2020.
I dismiss the respondent’s stay application.
Submissions as to the costs of and incidental to the stay application are to be filed and served in accordance with paragraph 49 of these reasons.
The question of costs of and incidental to the stay application will be decided on the papers.
I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 28 October 2020.
Associate:
Date: 28 October 2020
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