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 [6]–[22]. I will only repeat the history to the extent necessary for the purposes of this judgment.
This judgment deals with an application for costs by the father upon review of a registrar’s decision, which comes before me via the following pathway.
The father filed an Application in a Case on 21 April 2017 (which is the correct date according to the court file)[1] and an Application in a Case on 30 May 2017.
[1] The father’s evidence referred to a filing date of 27 May 2017.
The application filed on 21 April 2017 was heard by a senior registrar on 25 May 2017. The father sought enforcement of orders made by her Honour Justice Rees on 17 September 2012, after the mother failed to make the children available to spend their time with the father. The relevant background and outcome in relation to this enforcement application is set in my earlier judgment concerning costs: Masih & El Saeid (No 3) [2021] FamCA 577 at [41]–[46] (“the second costs judgment”). In response to the father’s application, the mother had alleged risk of physical violence to the children from the father. However, the senior registrar made no alteration to the orders dated 17 September 2012, although he made an order restraining the father from physically disciplining the children.
Despite the fact no alteration was made to the 2012 orders, the mother again failed to make the children available for their time with the father after 25 May 2017. The father then filed the further application on 30 May 2017.
This application was heard by the senior registrar on 2 June 2017. A recovery order was issued against the mother. The mother sought a review of this order. Justice Rees dismissed the mother’s review application. The relevant background and outcome in relation to this application is set in the second costs judgment at [47]–[52].
On 14 July 2020, the senior registrar dismissed the father’s application for costs of his two applications filed on 21 April 2017 and 30 May 2017.
The father claims in his affidavit filed on 17 December 2020 that this order was not listed on the portal, nor was it brought to the attention of his solicitors up until 30 November 2020, after enquiries were made.
ORDERS SOUGHT AS TO COSTS
The father filed an Application in a Case on 17 December 2020 seeking a review of the senior registrar’s decision given on 14 July 2020, and then an Amended Application in a Case, on 20 September 2021. Pursuant to the Amended Application in a Case, the father seeks the following orders:
1.That the Order of [the] Senior Registrar […] dated 14 July 2020 be reviewed.
2.That the time limits in relation to filing this Application for Review be dispensed with.
3.That the Respondent Mother pay the Applicant Father's costs of and incidental to the Father's Application in a Case filed 21 May 2017 and the Father's Application in a Case filed 30 May 2017 including the costs of the appearance before [the] Senior Registrar […] on 25 May 2017 and 2 June 2017 quantified on a party-party basis at $23,000.
4.In the alternative to order 3 herein, the Respondent pay the Applicant Father's costs of and incidental to the Father's Application in a Case filed 21 May 2017 and the Father's Application in a Case 30 May 2017 including the costs of the appearance before [the] Senior Registrar […] on 25 May 2017 and 2 June 2017 as agreed or assessed.
In support of this application, the father filed an affidavit on 17 December 2020, which included submissions in relation to the original application before the senior registrar and an affidavit sworn on 7 September 2021.
Correspondence received on 4 February 2022 from the father’s solicitors indicated that the father did not wish to make any further submissions, and was content for the matter to be dealt with on the papers. The mother did not oppose this course.
The mother filed a responsive affidavit on 28 September 2021. She states at [7] of her affidavit that she is “not willing to agree to any cost orders for the children’s case as the father is the one making problems and he should be paying for it.” The mother did not make any other submissions in writing.
THE LAW
The father’s initial Application in a Case for Review was not filed in accordance with the time limits specified in the former Family Law Rules2004 (Cth). The father sought an order dispensing with those time limits. The mother said nothing about this. There appears to have been some confusion about the publication of the orders of the senior registrar which disadvantaged the father. I will make an order dispensing with any time limits. The Amended Application for Review was filed after 1 September 2021 and therefore falls to be determined under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). An application for review of a registrar’s decision is an original hearing: r 14.07(1). The review application is determined as an original application for costs.
I set out the relevant principles in the first costs judgment, which I adopt and will not repeat. The Court has a wide discretion and this is to be exercised judicially, in accordance with s 117 of the Act.
When considering what, if any, order for costs should be made, the Court must have regard to the factors set out in s 117(2A):
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
DISCUSSION
In his written submissions in relation to costs (following the decision of the senior registrar on 25 May 2017), the father contended that subparagraphs (c), (d), and (e) of s 117(2A) of the Act are relevant. The mother, in her written submissions dated 19 June 2017 to which I have had regard, briefly addressed all the subparagraphs of s 117(2A). The mother submits that each party should bear their own costs, and that there were insufficient circumstances that justify an order as to costs.
Section 117(2A)(a) – the financial circumstances of each of the parties
The father does not make reference to the financial circumstances of the parties as a relevant factor in his submissions. The mother made reference to factual matters concerning the financial circumstances of the mother in 2016 and 2017. In my view they are no longer relevant. It is noted that the mother was self-represented from 17 July 2020 until 19 May 2022.
I take account of the fact the mother became bankrupt in late 2021.
Section 58(3)(b) of the Bankruptcy Act 1966 (Cth), which prohibits a creditor from taking any step in proceedings against a bankrupt without leave of a court seized of jurisdiction under the Bankruptcy Act, is no impediment to making a costs order against the mother. An order for costs made after a party becomes bankrupt is not a debt provable in the bankruptcy: Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52.
Section 117(2A)(b) – whether any party is in receipt of legal aid
Neither party is in receipt of legal aid.
Section 117(2A)(c) – the conduct of the parties
The father argues two main points. Firstly, that the subpoenas issued by the mother were poorly drawn. Secondly, that, in relation to the filing of notices of objection by the father, one subpoena was ultimately not pressed and the other two subpoenas were substantially read down. Neither argument militates in favour of a costs order against the mother.
The mother submitted that the father’s Application in a Case of 30 May 2017 was not served until after 3.00pm on 1 June 2017, despite the matter being listed for 9.30am the following day. Furthermore, she argues that despite having the assistance of an interpreter on a previous occasion, the court failed to provide her with an interpreter that day.
Whilst this may be so, she did not explain how this caused her any prejudice or injustice that should militate against there being a costs order against her. In any event, she was represented by lawyers at all relevant times.
Section 117(2A)(d) – whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
The father argues that his Application in a Case was filed as a result of the mother’s failure to comply with the interim parenting orders. He claims that he made attempts, by telephone communications and correspondence by his solicitor, to the mother’s solicitor on the first working day after the mother’s contravention, with the view to avoiding the need to file an Application in a Case. He did not provide details, although the mother did not deny these assertions.
The father, in his affidavit filed on 7 September 2021, refers to and relies on his affidavit filed 17 December 2020. In submissions annexed to this affidavit, he outlines numerous breaches by the mother of orders of Aldridge J between 20 October 2014 and 6 July 2015, and secondly, non-compliance with the order of a judicial registrar on 24 June 2015. None of these matters are relevant to the discrete costs application the subject of this judgment.
Section 117(2A)(e) – whether any party has been wholly unsuccessful
The father argues that the mother was wholly unsuccessful in the orders she sought in her responses to his applications.
In relation to the application filed on 27 April 2017, I accept the mother failed to convince the senior registrar that the children should be withheld from the father, but he made an order restraining the father from physically disciplining or punishing the children.
In relation to the further application filed 30 May 2017, I accept the mother failed to convince the senior registrar that the father posed a risk to the children and he made a recovery order against her.
Section 117(2A)(f) – whether any party made an offer in writing to settle
The mother argues that she, through her solicitors at the time, forwarded a letter to the father’s solicitors on 20 April 2017 before the father commenced proceedings, attempting to resolve the parenting maters. However, the father did not respond. The father did not contest this.
Section 117(2A)(g) – other matters the Court considers relevant
The father stated in his affidavit dated 7 September 2021 that the total costs incurred in relation to the applications heard on 25 May 2017 and 2 June 2017 were $30,685.82.
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.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 20 July 2022
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