Manesh & Manesh - [2021] FedCFamC1A 4

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Manesh & Manesh [2021] FedCFamC1A 4

Appeal from: Manesh & Manesh [2020] FamCA 792

Appeal number(s): SOA 86 of 2020

File number(s): MLC 8955 of 2019

Judgment of: ALDRIDGE, WATTS & AUSTIN JJ

Date of judgment: 8 September 2021

Catchwords: FAMILY LAW – APPEAL – COSTS – Written submissions on the issue of costs – Where the appeal was wholly unsuccessful – Where both parties seek costs –
Where written offers do not carry any weight – Respondent’s claim for costs is not excessive – Appellant to pay respondent’s costs in a fixed sum.

Legislation:
Family Law Act 1975 (Cth) s 117

Federal Proceedings (Costs) Act 1981 (Cth) s 9

Family Law Rules 2004 (Cth) Sch 3

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3

Cases cited: Manesh & Manesh (No. 3) [2021] FamCAFC 113

Number of paragraphs: 19

Date of last submissions: 20 August 2021

Date of hearing: Heard by way of written submissions

Place: In chambers, delivered in Sydney

The Appellant: Self-represented litigant

Counsel for the Respondent: Mr Goddard

Solicitor for the Respondent: Freeman Family Law

The Independent Children’s Lawyer: Did not participate in the appeal
ORDERS

SOA 86 of 2020
MLC 8955 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR MANESH

Appellant

AND:
MS MANESH

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE, WATTS & AUSTIN JJ

DATE OF ORDER:

8 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.The appellant pay the respondent’s costs fixed in the sum of $10,178.73.

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 the pseudonym Manesh & Manesh has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, WATTS & AUSTIN JJ:

On 16 July 2021 we dismissed the appeal in this matter and directed that the issue as to the costs of the appeal be determined by way of written submissions. Those submissions have now been received.
The respondent seeks an order that the appellant pay her costs of the appeal in the sum of $10,784 as an indemnity against all her costs, or $8,943.18 (calculated at the time of its preparation pursuant to Sch 3 of the Family Law Rules 2004 (Cth), which is now Sch 3 of…

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 & Manesh

Details

AGLC: Manesh & Manesh [2021] FedCFamC1A 4
Case: [2021] FedCFamC1A 4
Decision Date: 8 September 2021

CaseChat Overview and Summary

The appeal, referred to as Manesh & Manesh, involves a family law matter in the Family Court of Australia. The appellant, Manesh, sought to overturn a decision made by the trial judge regarding various aspects of a family law dispute. The respondent, also Manesh, defended the decision and requested costs associated with the appeal. Both parties sought an order for costs, resulting in a need for the court to determine the appropriate allocation of costs between the parties.

The central legal issue before the court was the determination of costs in a wholly unsuccessful appeal. The court had to assess the written submissions and offers provided by both parties and decide on the appropriate amount of costs to be awarded. Given that the appeal was entirely unsuccessful, the court needed to consider whether the respondent's claim for costs was reasonable and not excessive.

The court found that the written offers submitted by both parties did not carry significant weight in determining the final costs order. It assessed the nature and complexity of the appeal, the efforts expended by both parties, and the overall outcome. The court determined that the respondent's claim for costs was reasonable and not excessive, leading to the conclusion that the appellant should bear the respondent's costs. Accordingly, the court ordered that the appellant pay the respondent's costs in a fixed sum of $10,178.73. This decision reflects the court's assessment of the unsuccessful appeal and the need to allocate costs fairly between the parties.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The appellant pay the respondent’s costs fixed in the sum of $10,178.73.

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 the pseudonym Manesh & Manesh has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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.

SOA 86 of 2020 MLC 8955 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR MANESH Appellant
AND:	MS MANESH Respondent
INDEPENDENT CHILDREN’S LAWYER

Appeal from:	Manesh & Manesh [2020] FamCA 792
Appeal number(s):	SOA 86 of 2020
File number(s):	MLC 8955 of 2019
Judgment of:	ALDRIDGE, WATTS & AUSTIN JJ
Date of judgment:	8 September 2021
Catchwords:	FAMILY LAW – APPEAL – COSTS – Written submissions on the issue of costs – Where the appeal was wholly unsuccessful – Where both parties seek costs – Where written offers do not carry any weight – Respondent’s claim for costs is not excessive – Appellant to pay respondent’s costs in a fixed sum.
Legislation:	Family Law Act 1975 (Cth) s 117 Federal Proceedings (Costs) Act 1981 (Cth) s 9 Family Law Rules 2004 (Cth) Sch 3 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3
Cases cited:	Manesh & Manesh (No. 3) [2021] FamCAFC 113
Number of paragraphs:	19
Date of last submissions:	20 August 2021
Date of hearing:	Heard by way of written submissions
Place:	In chambers, delivered in Sydney
The Appellant:	Self-represented litigant
Counsel for the Respondent:	Mr Goddard
Solicitor for the Respondent:	Freeman Family Law
The Independent Children’s Lawyer:	Did not participate in the appeal

ORDER MADE BY:	ALDRIDGE, WATTS & AUSTIN JJ
DATE OF ORDER:	8 SEPTEMBER 2021