Pachar & Mahal - [2023] FedCFamC1F 422

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pachar & Mahal [2023] FedCFamC1F 422

File number: PAC 3706 of 2021

Judgment of: BRASCH J

Date of judgment: 25 May 2023

Catchwords: FAMILY LAW – COSTS – Where the wife sought to join the husband’s mother to the proceedings –Where the wife sought, in this Court, to stay a part heard trial in the Supreme Court of New South Wales and a transfer of those proceedings to this Court – Where wife contended this Court’s accrued jurisdiction permitted that interference with a separate Court – Where the wife unsuccessful – Where the proposed third party sought costs – Where the husband sought costs – Cost order made in favour of the proposed third party pursuant to Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Legislation:
Family Law Act 1975 (Cth) ss 31, 117(1), 117(2), 117(2A), 117(2A)(a)-(f), 117(2A)(g)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.17(1)(a), 12.13(4)

Cases cited:
Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225

Harris & Dewell (No 2) (2018) FLC 93-863 [2018] FamCAFC 180

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378

McAlpin & McAplin (1993) 114 FLR 452; (1993) FLC 92-411

Medlon & Medlon (No. 6) (Indemnity Costs) (2015) 54 Fam LR 1; FLC 93-664; [2015] FamCAFC 157

Munday v Bowman(1997) 22 Fam LR 321; FLC 92-784

PBF (as child representative for AF (Legal Aid Commission of Tasmania)) & TRF & LKL (2005) 191 FLR 294; [2005] FamCA 158

Prantage & Prantage (Costs) [2014] FamCA 850

Rankin and Rankin (No 3) [2019] FamCAFC 133

Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; HCA 44 [1998]

Willmann & Willmann [2022] FedCFamC1F 232

Yunghanns v Yunghanns (2000) 26 Fam LR 331; FLC 93-029; [2000] FamCA 681

Division: Division 1 First Instance

Number of paragraphs: 86

Date of last submissions: 15 May 2023

Date of hearing: 27 April 2023

Place: Sydney

Counsel for the Applicant: Ms Hamilton

Solicitor for the Applicant: Kailash Lawyers & Consultants

Solicitor for the Respondent: Mihalatos & Associates

Counsel for the Prospective Respondent: Ms Dart

Solicitor for the Prospective Respondent: Goodwin & Co Lawyers
ORDERS

PAC 3706 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS PACHAR

Applicant

AND:
MR MAHAL

Respondent

MS MAHAL

Proposed Second Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

BRASCH J

DATE OF ORDER:

25 May 2023

THE COURT ORDERS THAT:
1.Within fourteen (14) days of this Order, the applicant wife pay the costs of the proposed second respondent, Ms Mahal, in the sum of $12,727.20.
2.There be no order as to costs between the husband and wife of and incidental to the hearing on 27 April 2023.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons…

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 Pachar & Mahal

Details

AGLC: Pachar & Mahal [2023] FedCFamC1F 422
Case: [2023] FedCFamC1F 422
Decision Date

CaseChat Overview and Summary

The case of Pachar & Mahal was heard in the Federal Circuit and Family Court of Australia. The wife filed an Initiating Application on 8 July 2021, and the husband filed his Response to Final Orders on 29 November 2021. The matter was transferred to Division 1 of the Federal Circuit and Family Court of Australia on 16 November 2022. The dispute primarily concerns the allocation of costs between the husband and wife, as well as the potential for costs orders against the proposed second respondent. The primary legal issue before the court was the allocation of costs between the husband and wife, as well as the potential for costs orders against the proposed second respondent. The court had to determine whether the usual position of each party bearing their own costs should apply, as per section 117(1) of the Family Law Act, and whether the court had the discretion to order costs against the proposed second respondent under section 117(2) of the Act.

The court found that the usual position of each party bearing their own costs applied to the husband and wife, in line with section 117(1) of the Family Law Act. However, the court also acknowledged its discretion to order costs against the proposed second respondent under section 117(2). The court noted that its jurisdiction to order costs was not limited by the Act and that it could make such orders as it considered just. The court did not make a specific costs order against the proposed second respondent in this instance, but it left open the possibility for future consideration.

In conclusion, the court's decision emphasised the principle that each party bears their own costs, but it also reinforced the court's discretion to order costs against non-parties under certain circumstances. The court did not make a specific costs order against the proposed second respondent in this instance, but it highlighted the potential for such an order in the future if the circumstances warranted it.

Orders

Orders of the court

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Background

Background to the litigation

With respect to the costs sought by the husband, the wife’s position was that the usual position should apply and each party bear their own costs.BACKGROUND The wife filed an Initiating Application in the Federal Circuit Court of Australia (as it then was) on 8 July 2021. The husband filed his Response to Final Orders on 29 November 2021. On 16 November 2022, the proceedings were transferred to Division 1 of the Federal Circuit and Family Court of Australia. The parties married in Country B in 2004. The parties’ daughter, X was born in 2008, and their son Y born in 2012. The interim parenting applications sought by the husband and wife were before me on 27 April 2023, and adjourned to 7 December 2023, to allow for family therapy and a Family Report to be prepared. The husband, the proposed second respondent, and the children reside at the former matrimonial home in Suburb C. The proposed second respondent’s interest in the Suburb C property is the subject of the New South Wales Supreme Court trial, to which I have already referred. Material The wife relied upon her written submissions filed 15 May 2023. The husband relied upon his written submissions filed 5 May 2023. The proposed second respondent relied upon:·Written submissions filed 5 May 2023;·Affidavit of Mr D filed 5 May 2023;·Affidavit of Mr D filed 24 April 2023 (page 74 only); and ·Affidavit of Mr D filed 31 March 2023 (page 134 only). In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:It is not the duty of the judge to decide every matter which is raised in argument.…Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…Costs Section 117(1) of the Act provides that each party to proceedings under this Act will bear their own costs. Obviously, this applies as between the husband and wife in this matter. As for the proposed second respondent, counsel for both the proposed second respondent and the wife were at one to the extent that s 117(1) does not apply to the proposed second respondent, as she is not a party to these proceedings. However, s 117(2) still provides that if, in proceedings under this Act, the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to subsection (2A) and various other subsections and the applicable rules of court, make such order as to costs as the court considers just. It has been held that “on a natural reading of s 117(2) of the Family Law Act, this court’s jurisdiction to order costs is unlimited” (McAlpin & McAplin (1993) FLC 92-411, at 80,215 per Nicholson CJ and Maxwell J).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	PAC 3706 of 2021
Judgment of:	BRASCH J
Date of judgment:	25 May 2023
Catchwords:	FAMILY LAW – COSTS – Where the wife sought to join the husband’s mother to the proceedings –Where the wife sought, in this Court, to stay a part heard trial in the Supreme Court of New South Wales and a transfer of those proceedings to this Court – Where wife contended this Court’s accrued jurisdiction permitted that interference with a separate Court – Where the wife unsuccessful – Where the proposed third party sought costs – Where the husband sought costs – Cost order made in favour of the proposed third party pursuant to Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Legislation:	Family Law Act 1975 (Cth) ss 31, 117(1), 117(2), 117(2A), 117(2A)(a)-(f), 117(2A)(g) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.17(1)(a), 12.13(4)
Cases cited:	Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 Harris & Dewell (No 2) (2018) FLC 93-863 [2018] FamCAFC 180 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 McAlpin & McAplin (1993) 114 FLR 452; (1993) FLC 92-411 Medlon & Medlon (No. 6) (Indemnity Costs) (2015) 54 Fam LR 1; FLC 93-664; [2015] FamCAFC 157 Munday v Bowman(1997) 22 Fam LR 321; FLC 92-784 PBF (as child representative for AF (Legal Aid Commission of Tasmania)) & TRF & LKL (2005) 191 FLR 294; [2005] FamCA 158 Prantage & Prantage (Costs) [2014] FamCA 850 Rankin and Rankin (No 3) [2019] FamCAFC 133 Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; HCA 44 [1998] Willmann & Willmann [2022] FedCFamC1F 232 Yunghanns v Yunghanns (2000) 26 Fam LR 331; FLC 93-029; [2000] FamCA 681
Division:	Division 1 First Instance
Number of paragraphs:	86
Date of last submissions:	15 May 2023
Date of hearing:	27 April 2023
Place:	Sydney
Counsel for the Applicant:	Ms Hamilton
Solicitor for the Applicant:	Kailash Lawyers & Consultants
Solicitor for the Respondent:	Mihalatos & Associates
Counsel for the Prospective Respondent:	Ms Dart
Solicitor for the Prospective Respondent:	Goodwin & Co Lawyers

PAC 3706 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS PACHAR Applicant
AND:	MR MAHAL Respondent MS MAHAL Proposed Second Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	BRASCH J
DATE OF ORDER:	25 May 2023