Masih & El Saeid - [2022] FedCFamC1F 515

Federal Circuit and Family Court of Australia
(DIVISION 1)
Masih & El Saeid [2022] FedCFamC1F 515

File number(s): SYC 2986 of 2012

Judgment of: HARPER J

Date of judgment: 20 July 2022

Catchwords: FAMILY LAW – COSTS – Review of decision of judicial registrar dismissing father’s application for costs – Where father filed two Applications in a Case seeking enforcement of parenting orders – Where mother failed to comply with parenting orders – Costs ordered in fixed sum.

Legislation:
Bankruptcy Act 1966 (Cth) s 58(3)(b)

Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.07(1)

Cases cited:
Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52

Masih & El Saeid (No 2) [2021] FamCA 292

Masih & El Saeid (No 3) [2021] FamCA 577

Division: Division 1 First Instance

Number of paragraphs: 36

Date of last submission/s: 17 December 2020

Date of hearing: On the papers

Place: Sydney

Solicitor for the Applicant: Diamond Conway Lawyers

The First Respondent: Litigant in person

Solicitor for the Second Respondent: No appearance required
ORDERS

SYC 2986 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR A MASIH

Applicant

AND:
MS EL SAIED

First Respondent

TRUSTEE FOR THE BANKRUPTCY FOR MS EL SAEID

Second Respondent

order made by:

HARPER J

DATE OF ORDER:

20 July 2022

THE COURT ORDERS THAT:
1.Within 28 days, the Applicant Mother pay the costs of the Respondent Father of the Applications in a Case filed on 21 April 2017 and 30 May 2017, fixed in the amount of $15,000.

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 Masih & El-Saeid has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION

This is a further costs application made by the Applicant Father, Mr A Masih (“the father”) against the Respondent Mother, Ms El-Saeid (“the mother”).
The parties’ have two children, Q, born 2006, and R, born 2009 (“the children”).
The relevant background is set in my earlier judgment concerning costs: Masih & El Saeid (No 2) [2021] FamCA 292 at [1]–[5] (“the first costs judgment”).
SHORT PROCEDURAL HISTORY
The broader procedural history of this matter was thoroughly set in the first costs judgment at…

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 Masih & El Saeid

Details

AGLC: Masih & El Saeid [2022] FedCFamC1F 515
Case: [2022] FedCFamC1F 515
Decision Date

CaseChat Overview and Summary

In the case of Masih & El Saeid, the mother contested the father's claims regarding the care and custody of their children, arguing that she had reasonable grounds to withhold the children due to their expressed fear of the father. The father contested these claims, leading to the filing of multiple applications. The court was tasked with determining the validity of the mother's actions and whether she should be ordered to pay costs to the father.

The primary legal issue before the court was whether the mother's refusal to comply with previous court orders was justified and whether she should be held liable for the costs incurred by the father due to her actions. The court had to assess the reasonableness of the mother's conduct and her motivations, as well as consider the father's claim for costs. The court also needed to determine an appropriate amount for the costs if they were to be awarded.

The court found that the applications were a direct result of the mother's failure to comply with previous court orders, rendering her substantially unsuccessful in one application and wholly unsuccessful in another. While acknowledging that the mother acted out of concern for the children, the court determined that her actions were not justified. The court found that the father had sufficiently demonstrated grounds for departing from the standard position under section 117(1), justifying an award of costs. Given the mother's bankruptcy, the court rejected the argument that this should exempt her from paying costs, as impecuniosity alone does not preclude such an order. The court fixed the amount of costs at $15,000, considering the father's claim of $23,000 for both applications.

The final orders of the court included an order for the mother to pay the father $15,000 in costs. The court exercised its discretion in setting the amount, taking into account the matters discussed. This decision highlights the court's role in enforcing compliance with its orders and its power to award costs where appropriate.

Orders

Orders of the court

Full text does not contain this section.

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

The mother argued that it was reasonable for her to withhold the children because they expressed fear of the father to her. While this is contested by the father, and I am not able to form a view about the reasonableness of the mother’s conduct, I accept she likely acted out of a genuine concern for the children.CONCLUSION I am satisfied that the two applications before the senior registrar and the subject of this judgment, were necessitated by the failure of the mother to comply with previous court orders. The mother was substantially unsuccessful in respect of the application filed on 27 April 2017 and wholly unsuccessful in respect of the application filed on 30 May 2017. Although the mother is bankrupt, I do not consider this to be a sufficient reason to deny a costs order, since impecuniosity alone does prevent a costs order. I am satisfied the father has established a justification to depart from the position in s 117(1) and that he should receive an award of costs. The mother did not challenge any of the father’s figures for costs. He claimed a fixed amount of $23,000 for both applications. The court has the discretion to fix an amount for costs. In light of the matters discussed above, I will fix an amount for costs at $15,000. I will make an order for the mother to pay the costs of the father in this amount.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 2986 of 2012
Judgment of:	HARPER J
Date of judgment:	20 July 2022
Catchwords:	FAMILY LAW – COSTS – Review of decision of judicial registrar dismissing father’s application for costs – Where father filed two Applications in a Case seeking enforcement of parenting orders – Where mother failed to comply with parenting orders – Costs ordered in fixed sum.
Legislation:	Bankruptcy Act 1966 (Cth) s 58(3)(b) Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.07(1)
Cases cited:	Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 Masih & El Saeid (No 2) [2021] FamCA 292 Masih & El Saeid (No 3) [2021] FamCA 577
Division:	Division 1 First Instance
Number of paragraphs:	36
Date of last submission/s:	17 December 2020
Date of hearing:	On the papers
Place:	Sydney
Solicitor for the Applicant:	Diamond Conway Lawyers
The First Respondent:	Litigant in person
Solicitor for the Second Respondent:	No appearance required

SYC 2986 of 2012
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR A MASIH Applicant
AND:	MS EL SAIED First Respondent TRUSTEE FOR THE BANKRUPTCY FOR MS EL SAEID Second Respondent

order made by:	HARPER J
DATE OF ORDER:	20 July 2022