Manesh and Manesh (No 3) - [2020] FamCA 952

FAMILY COURT OF AUSTRALIA

MANESH & MANESH (NO 3)

[2020] FamCA 952

FAMILY LAW – COSTS – unsuccessful stay application – wife and ICL seeking costs on the basis that the stay application was wholly unsuccessful – indemnity costs ordered.

Family Law Act 1975 (Cth), s 117
Family Law Rules 2004 (Cth), r 19.18

Fitzgerald v Fish (2005) 33 Fam LR 123
In the Marriage of Wilson (1989) 13 Fam LR 205
Manesh & Manesh [2020] FamCA 792
Manesh & Manesh (No. 2) [2020] FamCA 904
Medlon & Medlon (No 6) (2015) 54 Fam LR 1

APPLICANT:

Ms Manesh

RESPONDENT:

Mr Manesh

INDEPENDENT CHILDREN’S LAWYER:

Macgregor Barristers & Solicitors

FILE NUMBER:

MLC

8955

2019

DATE DELIVERED:

19 November 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

On the papers

DATE OF LAST SUBMISSIONS:

11 November 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 & Solicitors

Orders

On or before 4pm on 18 January 2021 the respondent is to pay the applicant the sum of $6,308 by way of indemnity costs.
On or before 4pm on 18 January 2021 the respondent is to pay the independent children’s lawyer the sum of $2,765 by way of indemnity costs.

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

These are my reasons for making a costs order on the respondent’s unsuccessful stay application, the subject of my decision in Manesh & Manesh (No. 2).[1] In that decision I dismissed Mr Manesh’s application to stay my decision in Manesh & Manesh.[2]
[1] [2020] FamCA 904.
[2] [2020] FamCA 792.
For the reasons that follow in my view the wife and ICL are entitled to an order under s 117(2) that the respondent pay the wife’s and ICL’s costs of the respondent’s unsuccessful stay application.
In Fitzgerald v Fish[3] it was held that any one of the grounds of s 117(2A)(a) to (g) may support a costs order under s 117(2) with the consequence that an order that deviates from s 117(1) can be made. In the absence of an order under…

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 Manesh and Manesh (No 3)

Details

AGLC: Manesh and Manesh (No 3) [2020] FamCA 952
Case: [2020] FamCA 952
Decision Date: 19 November 2020

CaseChat Overview and Summary

In *Manesh and Manesh (No 3)*, heard by Wilson J, the proceedings concerned an application for indemnity costs. The applicant sought these costs against the respondent.

The central legal issue before the court was whether the respondent should be ordered to pay the applicant's and the independent children's lawyer's costs on an indemnity basis.

Wilson J determined that the respondent should pay the applicant's costs on an indemnity basis, as well as the costs of the independent children's lawyer on an indemnity basis. The court ordered the respondent to pay the applicant the sum of $6,308 and the independent children's lawyer the sum of $2,765, both by way of indemnity costs, on or before 4pm on 18 January 2021.

Orders

Orders of the court

On or before 4pm on 18 January 2021 the respondent is to pay the applicant the sum of $6,308 by way of indemnity costs.

On or before 4pm on 18 January 2021 the respondent is to pay the independent children’s lawyer the sum of $2,765 by way of indemnity costs.

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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