Naderi & Wakim (No 2) - [2022] FedCFamC1F 1047

Federal Circuit and Family Court of Australia
(DIVISION 1)
Naderi & Wakim (No 2) [2022] FedCFamC1F 1047

File number(s): SYC 7996 of 2021

Judgment of: SCHONELL J

Date of judgment: 22 December 2022

Catchwords: FAMILY LAW – COSTS – Where the wife sought a costs order – Consideration of factors in s 117(2A) of the Family Law Act 1975 (Cth) – Where the wife made offers of settlement to which the husband did not respond to – Where it was imprudent to not accept a sensible offer and to not respond – Costs ordered in a fixed sum.

Legislation:
Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67

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

Cases cited:
Bant & Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35

Naderi & Wakim [2022] FedCFamC1F 776

Pascoe & Larsen (No 2) [2022] FedCFamC1A 126

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158

Penfold and Penfold (1980) 144 CLR 311; [1980] HCA 4

Division: Division 1 First Instance

Number of paragraphs: 35

Date of last submissions: 20 December 2022

Place: Sydney

Solicitor for the Applicant: Mills Oakley

Solicitor for the Respondent: Barkus Doolan Winning
ORDERS

SYC 7996 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS NADERI

Applicant

AND:
MR WAKIM

Respondent

order made by:

SCHONELL J

DATE OF ORDER:

22 DECEMBER 2022

THE COURT ORDERS THAT:
1.The respondent husband (“the husband”) pay the applicant wife’s (“the wife’s”) costs of and incidental to the wife’s Application in a Proceeding filed 7 September 2022 on a party/party basis with such costs to be fixed in the sum of $20,318.01, such sum to be paid within 30 days of the making of these orders.
2.The husband pay the wife’s costs of and incidental to the Application for costs with such costs to be fixed in the sum of $5,500, such sum to be paid within 30 days of the making of these orders.

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 Naderi & Wakim has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:

By Application in…

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 Naderi & Wakim (No 2)

Details

AGLC: Naderi & Wakim (No 2) [2022] FedCFamC1F 1047
Case: [2022] FedCFamC1F 1047
Decision Date

CaseChat Overview and Summary

Naderi & Wakim (No 2) is a case in which the wife sought a costs order in relation to various family law proceedings. The wife's primary application was determined by Maguire J, who made orders in her favour. The wife then filed a costs application seeking an order for her costs of the primary application and the costs application itself. The husband did not respond to the wife's offers of settlement and failed to comply with the Court's directions in relation to the costs application. The Court had to decide whether it was just to order that the husband pay the wife's costs on a party/party basis or in a fixed sum.

The Court considered the relevant provisions of the Family Law Act 1975 (Cth) and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The Court noted that it had a discretion to make a costs order if there were justifying circumstances. The Court considered the various factors set out in s 117(2A) of the Act, including the parties' financial circumstances, conduct, and whether any party had made an offer in writing. The Court found that the husband's failure to respond to the wife's offers of settlement was imprudent and constituted relevant conduct. The Court also found that the wife's offer of settlement on 30 September 2022 was a sensible resolution of the proceedings.

The Court concluded that there were justifying circumstances for it to depart from the general rule that each party bear their own costs. The Court fixed the wife's costs in a set amount to avoid further costs and delay. The Court also ordered that the husband pay the wife's costs of the costs application within the same time frame.

The Court ordered that the husband pay the wife's costs of the primary application and the costs application in a fixed sum of $25,818.01, to be paid within 30 days.

Orders