Musa & Waheed (No 2)
[2025] FedCFamC2F 834
•2 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Musa & Waheed (No 2) [2025] FedCFamC2F 834
File number(s): PAC 4534 of 2023 Judgment of: JUDGE NEWBRUN Date of judgment: 2 June 2025 Catchwords: FAMILY LAW – COSTS – Between parties. Legislation: Family Law Act 1975 (Cth) s 117 Cases cited: Calderbank v Calderbank [1976] Fam 93 Division: Division 2 Family Law Number of paragraphs: 28 Date of hearing: 30 May 2025 Place: Parramatta Counsel for the Applicant: Ms Hamilton Solicitor for the Applicant: GDA Lawyers Pty Ltd Counsel for the Respondent: Ms Hawkins Solicitor for the Respondent: Simon Diab & Associates ORDERS
PAC 4534 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MUSA
Applicant
AND: MR WAHEED
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
2 JUNE 2025
THE COURT ORDERS THAT:
1.The husband shall pay to the wife:
(a)50 per cent of the wife’s costs in the property proceedings incurred after 12 August 2024, up to and including the final hearing, calculated pursuant to Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021, and;
(b)The wife’s costs of and relating to her Application in a Proceeding filed 19 March 2025 seeking costs, calculated pursuant to Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE NEWBRUN:
This is the determination of the wife’s Application in a Proceeding filed 19 March 2025 seeking costs of the property proceedings. The husband opposes the wife’s application for costs.
The wife relies upon her affidavit filed 19 March 2025. The husband relies upon his Response and supporting affidavit by himself both filed 28 May 2025.
As indicated to the parties at the cost hearing, the Court will also take into account the Court’s Reasons for Judgment and related orders in relation to the final property hearing.
At the costs hearing, each party was represented by counsel who made oral submissions in support of their respective contentions. The Court has considered the submissions together with all the above documentary material.
Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to proceedings shall bear their own costs. Section 117(2) of the Act states that if the Court is of the opinion that there are circumstances that justify in doing so, the Court may make such order as to costs as the Court considers just. Section 117(2A) of the Act provides that in considering what order, if any, should be made as to costs, the Court shall have regard to the following matters:
(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.
The Court now turns to relevant matters that the Court should consider under s 117(2A) of the Act.
As to the financial circumstances of each of the parties to the proceedings, s 117(2A)(a), the husband relies upon his financial circumstances as found by the Court in its Reasons for Judgement as well as his evidence relating to his financial circumstances set out in his affidavit filed 28 May 2025.
Under the Court’s Reasons for Judgment, the Court’s final balance sheet found that the Suburb C property had a value of $1,150,000 with a mortgage of $531,760. The Court was informed at the costs hearing that the mortgage indebtedness for that property, which is now in the name of the husband pursuant to the Court’s orders, is the sum of about $980,000. Accordingly, the husband’s present net equity in the Suburb C property is about $170,000.
Under the Court’s orders the husband was required to pay the wife $345,019 simultaneously with the wife transferring her interest in the property to the husband, both of which have occurred.
The Court’s final balance sheet found that the husband had personal liabilities of about $45,717.
The husband’s affidavit filed 28 May 2025 also refers to certain debts the husband has which did not enter the final balance sheet, being $60,000 owed by the husband to family and friends in unpaid loans. He states that he also has unpaid solicitor’s fees; his Costs Notice dated 29 May 2025 refers to outstanding fees owing of about $97,430 with estimated future costs of about $25,000.
The wife, as to her financial circumstances, similarly refers to the Court’s final balance sheet which indicates that she has an equity in the Town E property of about $311,000, cash of about $3,057, and finance credit card debt of $4,643. Her affidavit filed 19 March 2025 again refers to her care of the parties’ child and two other persons, aged 6 years, 14 years and 18 years respectively. The Court refers to its Reasons for Judgment in which it stated that there is a real prospect that the wife will carry the majority of the financial burden for the subject child of the parties’ former relationship until he reaches 18 years.
The wife also refers to owing family members in excess of $45,000 including for living expenses since separation and states that she intends to repay those monies.
The Court refers to its Reasons for Judgment as to the parties’ respective income earning capacities, with the Court having stated, inter alia, that the wife’s income earning capacity is probably greater than that of the husband when working full-time.
Thus, it can be seen that presently the wife owns an equity in the Town E property of about $311,000, cash of about $3,057, she has a greater earning capacity than the husband when working full-time (albeit she is presently choosing to work part-time) and she has other non-property related debt of about $49,643.
On the other hand, the husband owns equity in the Suburb C property of about $170,000, but has total debt (both within and outside the Court’s found balance sheet figures) of about $203,147 including future estimated legal fees of about $25,000.
As to the parties’ conduct in the proceedings, s 117(2A)(c), the wife contends that the husband’s conduct in the proceedings, including at trial, in relation to the gambling addback issue, in relation to which he was unsuccessful, should be taken into account in the wife’s favour. In this context, the wife submits, inter alia, that costs were expended by the wife’s side in obtaining evidence relating to this gambling issue prior to trial and significant time was taken at trial in cross-examination of the husband in relation to this issue.
On the gambling issue, in this context, the husband contends that overall there was not a disproportionate amount of time spent in cross-examination of the husband in relation to this gambling issue at the trial, bearing in mind that there were numerous other issues that were the subject of cross-examination.
When considering this gambling issue, the Court observes that this issue was one of many contested addback issues at the trial. Whilst the wife was significantly successful in relation to the gambling addback issue, there were other contested addback issues the trial in relation to which the wife was unsuccessful; for example, the wife’s contended addbacks for the husband’s unaccounted cash withdrawals were unsuccessful and a not insignificant amount of time was spent in cross-examination of the husband on these issues. There were other addbacks contended by the wife which were also unsuccessful. The Court also observes that there were three contended liability issues that the wife was unsuccessful in prosecuting, with the husband being unsuccessful in one of his proposed liability issues.
The Court further observes that both parties contended that their respective contributions under section 79 were 55 per cent, whereas the Court ultimately determined that their contributions should be assessed as equal. The court further observes that under section 75(2) the Court made an adjustment in favour of the wife of 12.5 per cent whereas the wife had originally contended the Court should make an adjustment in her favour under section 75(2) of 20 per cent.
As to 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, s 117(2A)(f) of the Act, the wife relies upon, in particular, her solicitors’ written offer of settlement dated 29 July 2024 to the husband’s solicitors, and which contained an offer of settlement pursuant to the principles in Calderbank v Calderbank [1976] Fam 93, inter alia providing for the husband retaining the Suburb C property and refinancing that property into his name, the wife retaining the Town E property and refinancing that property into her name, importantly in this context, the husband making a cash payment to the wife of only $271,514 to the husband, and otherwise each of the parties retaining other assets held in their respective names. The above offer was stated to be open for acceptance by the husband for a period of 14 days from 29 July 2024 namely by 5.00 pm on 12 August 2024.
The husband was critical of the contents of this written offer, contending that there was insufficient articulation of the evidence that the wife relied upon to make this offer. The Court is not persuaded that this is the case, bearing in mind in particular the following paragraph in that letter, after the wife’s written offer was set out:
We are of the view that based on the evidence advance by each of the parties (including disclosure documents), our client is likely to receive a better outcome on final hearing noting the financial and non-financial contributions of each party, the parties’ future needs, our client’s ongoing primary care of the child of the marriage (currently 5 years of age), your client’s failure to pay any child support since March 2023, and your client’s wastage of the matrimonial assets. As such, our client’s offer amounts to a significant compromise on her part and is well below what the FCFCOA would consider to be a just and equitable outcome in all the circumstances of the matter.
The above letter concluded by stating, inter alia, that should the husband not accept the wife’s offer and the wife proceed to obtain an outcome that was more favourable to her than the offer made, then the wife would bring an application that the husband pay her costs of the proceedings.
In the context of the wife’s current costs application, the Court takes into account the above offer which was not accepted by the husband.
On the material before the Court, having regard to the Court’s above discussions under section 117(2A) of the Act, it will be just for the Court to depart from the usual rule that each party meet their own costs, and order that the husband pay a proportion of the wife’s costs incurred after her offer of 29 July 2024.
The Court is not persuaded that the husband should pay any costs to the wife on an indemnity basis having regard to relevant indemnity costs legal principles, and the Court refers to its discussions above.
In all the circumstances, taking into account all the above matters discussed and referred to, it will be just to order that the husband pay:
·50 per cent of the wife’s costs in the property proceedings incurred after 12 August 2024 up to and including the final hearing, pursuant to the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021, Schedule 1;
·The wife’s costs of and relating to her Application in a Proceeding filed 19 March 2025, seeking costs, pursuant to scale costs under the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021, Schedule 1.
The Court makes orders accordingly.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Newbrun. Associate:
Dated: 18 June 2025
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