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 s 117(2), each party must bear his or her or its own costs under s 117(1). Further, evidence and not merely submissions must support an order under s 117(2), as was held in In the Marriage of Wilson.[4]
[3] (2005) 33 Fam LR 123.
[4] (1989) 13 Fam LR 205.
In this application the applicant argues that Mr Manesh was wholly unsuccessful on his stay application. I agree. He failed comprehensively.
That enlivened an order for costs against the respondent under s 117(2).
The basis on which an order for the payment of indemnity costs can be made was the subject of attention in this court in Medlon & Medlon (No 6).[5] Rule 19.18 of the Family Law Rules authorises costs to be ordered on an indemnity basis.
[5] (2015) 54 Fam LR 1.
Counsel for the wife submitted that the sum of $6,308 was properly payable by way of indemnity costs. In annexure A to submissions prepared by Ms Hession of counsel an itemised quantification of costs, calculated on an indemnity basis, was prepared. The total costs and disbursements was $6,308.
In submissions filed on 9 November 2020, the independent children’s lawyer sought costs in the sum of $2,765 for preparation and appearances relating to the respondent’s stay application on the basis that the respondent was wholly unsuccessful in his application.
The respondent (the unsuccessful applicant for the stay) filed a document dated 11 November 2020. He is not legally trained yet his document dated 11 November 2020 purported to be submissions. Paragraph 5 of that document set the tenor of his contentions. It was as follows –
5.I list the following issues in relation to a stay application which was lodged on 8 October 2020 giving my perspective and what I understand is the most logical course of action for the parties and the courts given the specific circumstances of the stay application.
In paragraph 6 he set out that his expectations on the stay application were to the effect that it would be granted. He said the following –
6.I followed the standard process of lodging an application for the following reasons
a.The appeal process says “If you want to stop the operation of the orders until your appeal is decided, you must file an Application in a Case to stay the orders and an affidavit”
i.My expectation was a stay will be granted unless any other party advises of compelling reasons against a stay
b.A stay application is sought by me given the huge financial burden if the court passes an order and I will be removed of cash to the tune of $ 14,400 which was a possible outcome of the cost order being passed given the wife’s cost submissions.
i.The burden is exacerbated by the fact that Federal Circuit Court already removed 50% of the available cash which is being appealed on grounds of financial stress and the need for compliance to the orders of financial disclosures for parties.
c.I was relying on a stay application if not entertained is a breach of the act as in Family Law rules schedule 6.11(1) states “before making an order for costs against a lawyer or other person who is not a party to a case, the court must give the lawyer or other person a reasonable opportunity to be heard”.
i.The opportunity for me to be heard in relation to the costs currently lies with the full court and the merits of the application decided there. Essentially the stay application gives me the opportunity to be heard before order of costs are made.
d.The reversal of any order of costs will put extra overhead on parties and the court
i.In the event that the appellate court approves that the applicant has valid grounds for appeal and if a cost order has been passed against me by the family court, there is this extra effort for the family court to reimburse the costs awarded against me. Thus, there is time and costs to parties and the court to reverse the cost orders and for me being reimbursed.
ii.In the best interest of all parties and taking due consideration of precious court time I preferred to lodge a stay application.
He overlooked that he bore the burden of persuading me to grant the stay.
The respondent misconstrued the evidentiary burden on a stay application. He said the following –
7.The wife when lodging an application to dismiss a stay application should come up with compelling reasons how a stay application is granted to impact her financially as well as the best interest of the child.
a.The compelling reasons should focus on how the delay in receiving the cost order and the amount hitting the bank will affect the wife that justifies lodging an application
b.The time and effort spent in responding to dismiss a stay application and the financial benefit of receiving a stay received in her favour considered on the following grounds
i.A demonstration of the costs of delay in the costs being awarded to her which is likely to be 3-6 months and the impact of the delay
ii.The legal fees to the wife to pursue a dismissal of stay application
iii.The probability of costs incurred being reimbursed and as per section 117 Family Law Act, where in family law cases and especially involving parental matters each party bears their own costs.
He repeated that erroneous submission in paragraph 12 of his document. There he said the following –
12.Wife: The wife when putting an application to dismiss a stay application should give compelling reasons how a stay application is going to impact her financially as well as the best interest of the child. However, the following are evident
a.The wife did not have anything of relevance in the affidavit to substantiate dismissing the stay affidavit rather than a copy of an earlier affidavit which is reaffirmed and lodged against the stay application.
b.The wife in particular did not give any compelling reasons why she needs the money for dismissing a stay application which is essentially invoking a delay in a cost order towards her.
c.The wife also did not consider in the stay application that in the event that if I am successful in the appeal court
i.how the wife would have to incur extra legal costs want to reimburse the costs
ii.and also thinking rationally would look at the cost of incurring legal costs with the risk of the cost order being overturned if my appeal is successful.
Embedded in the respondent’s submission was his belief in the correctness of his position that he was entitled to the relief he sought. In reality he is arguing the merits of his appeal. That is a matter for other eyes, not mine.
The respondent was critical of the authorities to which I referred in my two earlier decisions. He is not legally trained. He sought an order reserving costs. I determined that adversely to him. Insofar as he seeks an order reserving the costs of the stay application I refuse that request. The respondent should focus on getting the contested hearing dealt with.
I order the respondent to pay to the wife indemnity costs of $6,308 within 60 days.
I further order the respondent to pay to the independent children’s lawyer indemnity costs of $2,765 within 60 days.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 19 November 2020.

Associate:

Date: 19 November 2020