Rana & Rana

[2021] FamCA 634

FAMILY COURT OF AUSTRALIA

Rana & Rana [2021] FamCA 634

File number(s):	MLC 1515 of 2021
Judgment of:	BENNETT J
Date of judgment:	30 August 2021
Catchwords:	FAMILY LAW – COSTS – ordered as sought after relief was granted consistently with wife’s pre-action request.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	9
Date of hearing:	30 August 2021
Place:	Melbourne
Counsel for the Applicant:	Ms Renwick
Solicitor for the Applicant:	Coote Family Lawyers
Counsel for the Respondent:	Mr Puckey QC
Solicitor for the Respondent:	Lander & Rogers

ORDERS

MLC 1515 of 2021

BETWEEN:

MR RANA

Applicant

AND:

MS RANA

Respondent

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	30 AUGUST 2021

THE COURT ORDERS THAT:

Litigation Funding

1.That following the Husband spending the sum of $165,000 on his family law legal fees (including disbursements), for each dollar thereafter that the Husband pays or causes to be paid to his solicitors, he pay or cause to be paid an equal sum to the Wife's solicitors such monies to be applied in payment of the wife’s reasonable legal costs of these proceedings but not otherwise.

2.That on the 1st of every month, the Husband cause his solicitors to provide to the Wife's solicitors, trust and office account statements of the firm instructed by the Husband in support of all monies deposited by him, or on his behalf, into his solicitors trust account and invoices charged by his solicitors.

Costs

3.That the Husband pay the Wife's costs of her Application in a Case filed 24 August 2021 in the sum of $7,018.

4.That in the event that it is necessary to permit the husband to make the payments in paragraph 1 of this Order the husband forthwith make application to the Federal Court in proceedings number …/2021 seeking an order that:

For the purpose of paragraph 2d(ii) of the Order made on 14 May 2021 by Beach J the “reasonable legal expenses” include the reasonable legal expenses of the wife for which the husband is liable in these proceedings pursuant to paragraph 1 of the Order of Bennett J made on 30 August 2021 in the Family Law proceedings.

5.The monies applied by the parties towards payment of their legal costs be the subject of characterisation by the learned trial judge at the final hearing.

6.There be liberty to the husband and wife to apply on short notice in relation to implementation of paragraph 1 of this Order.

AND IT IS NOTED that paragraph 1 of this Order and the husband’s liability pursuant to it is predicated on the husband being able to pay the wife’s reasonable legal expenses in these proceedings from the funds held within the accounts described in paragraph 1 of the order made in the Federal Court proceedings on 14 May 2021.

BY CONSENT IT IS ORDERED

Sale of B Pty Ltd

7.That paragraph 5 of the Orders made 17 August 2021 be varied only to the extent necessary to permit the Husband, on the Completion date (1 September 2021) of the sale of B Pty Ltd to D Ltd, to cause the following payments to be made:

(a)The sum required to discharge the secured NAB loans of approximately $6,170,000;

(b)The sum required to discharge the guarantee and supporting general security agreement in respect of the loan advanced by C Pty Ltd to the Husband of approximately $2,481,000 PROVIDED ALWAYS, that this payment is permitted only on the basis that the Husband does all things required to procure the cooperation of C Pty Ltd and F Pty Ltd necessary to cause all remaining monies owing by the Husband to C Pty Ltd and by F Pty Ltd to the Rana Super Fund and/or B Pty Ltd in the sum of approximately $2,081,000 plus interest to be paid to the Rana Super Fund contemporaneously with the discharge of the C Pty Ltd loan AND FURTHER, the Husband and the Wife be and are hereby restrained from re-investing, drawing or otherwise dealing with funds held by the Rana Super Fund until further order;

(c)The balance is to be paid to the B Pty Ltd accounts the subject of the Federal Court Orders.

AND the Husband provide to the Wife’s solicitors documentary evidence of the quantum of each payment no less than 48 hours in advance.

8.That within 7 days of these Orders, the Husband shall provide the Wife's solicitors all documents not already provided in relation to the sale of B Pty Ltd, including but not limited to:

(a)A signed Contract of sale and any other documents evidencing sale and terms of agreement including particulars of all entities to be sold;

(b)particulars and source documents (including but not limited to contracts, guarantees, loan account statements) in support of asserted liabilities that the Husband proposes to be paid from the sale of B Pty Ltd;

(c)proposed direction to pay for payment tranches to be received from sale of B Pty Ltd;

(d)details of how the Husband (including in his capacity as Director of B Pty Ltd), proposes to apply and/or hold the funds received from the sale; and

(e)The Deed of acknowledgment that the Husband proposes to enter into with C Pty Ltd and F Pty Ltd so that the proceeds of the sale of B Pty Ltd are paid directly to the Rana Super Fund per paragraph 8. (b) xii of the Husband's Affidavit filed 24 August 2021.

Interim Parenting Matters

9.That the child X born … 2014 live with the Mother and spend time with the Father as follows:

(a)during Term 3 and Term 4 in 2021:

(i)in week one, from the conclusion of school (or 3.30pm if it is a non-school day) on Wednesday until the commencement of school (or 9.00am if it is a non-school day) on Thursday, commencing Wednesday 8 September 2021 in Term 3 and Wednesday 6 October 2021 in Term 4;

(ii)in week two, from the conclusion of school (or 3.30pm if it is a non-school day) on Friday until the commencement of school (or 9.00am if it is a non-school day) on Monday, commencing Friday 3 September 2021 in Term 3 and Friday 15 October 2021 in Term 4;

(b)from 5.00pm on Friday 17 September 2021 to 5.00pm on Thursday 23 September 2021;

(c)on Father’s Day from 9.00am until 5.00pm;

(d)in the event that X is not already spending time with the Father, for the paternal grandmother’s birthday celebration in 2021 from 3.00pm until 12.00pm;

(e)from 4.00pm on Saturday, 25 December 2021 to 5.00pm on 30 December 2021;

(f)from 5.00pm on Saturday, 8 January 2022 to 5.00pm on 14 January 2022;

(g)From 5.00pm on 22 January 2022 to 5.00pm on 28 January 2022; and

(h)such further or other times as agreed between the parties in writing.

10.Notwithstanding any other Order, X spend time with her parents on special occasions as agreed in writing and in default of agreement as follows:

(a)with the parent that X is not living with on her birthday:

(i)If it is a school day from the conclusion of school until 7.30pm; and

(ii)If it is a non-school day from 4.00pm until 8.00pm.

11.The parties do all things to facilitate X contacting (by telephone, Facetime or Moochies) the parent with whom she is not spending time with every night at such time as agreed (or 5.00pm in default of agreement) or such other reasonable times as requested by X and the parties ensure that X be provided with privacy whilst speaking with either parent.

12.In the event either parent is unable to care for X for a period exceeding 24 hours, the other parent be provided with the first option to care for her.

13.The parties be in substantial attendance during X’s time with them (excluding school time).

14.For the purpose of facilitating changeover that does not coincide with the X’s attendance at school, changeover occur at the Husband’s office in G Street, H Town.

15.For 24 hours immediately prior to the commencement of any time spent with X and during all such time spent, the parties each be restrained by injunction from being under the influence of alcohol to excess (or having a BAC above 0.05) or illicit drugs.

16.During the time X is with either the mother or the father, that parent will:

(a)speak of the other parent respectfully; and

(b)not denigrate or insult the other parent in the presence or hearing of X and use their best endeavours to ensure that others do not denigrate or insult the other parent in the presence or hearing of X.

17.Each parent notify the other parent of any medical emergency or serious medical problem, hospitalisation or accident in relation to X when she is in their care as soon as is reasonably practicable.

18.Each party be at liberty to serve a copy of these Orders and any other Orders made by this Honourable Court on X’s school.

19.The parents be entitled to obtain directly from any school attended by X or any health or welfare professional or other professional attended by X copies of any reports, notices or other relevant verbal or written advice affecting her education, health and welfare and for this purpose the Mother and Father keep the other parent informed of the names and contact details of any relevant education, health or welfare professional.

20.The parties each be at liberty to attend all school and sporting and extracurricular activities of X but the parties shall not approach each other in breach of any State Family Violence Order.

21.The Father be at liberty to attend J School for any purpose specified in an Order of this Honourable Court.

22.In the event that either party considers X is unable to attend school due to illness, the party will notify the other party by the Family Wizard App and each party will otherwise facilitate the child’s attendance at school while X is in their care and well.

23.The parties use the Our Family Wizard App to communicate with each other in relation to X with the Father to meet the cost of the Our Family Wizard App.

24.The parties forthwith engage Mr K at joint cost for the purposes of improving their co-parenting relationship with the Father to meet the cost.

IT IS DIRECTED THAT:

25.The minute of Orders with tracked changes be marked Exhibit “A” and remain on the Court file.

IT IS FURTHER ORDERED THAT:

26.Pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

27.All extant interlocutory applications be dismissed and the matter be allocated to the list of cases awaiting allocation to a judge’s docket.

AND IT IS NOTED THAT the father may bring a further interlocutory application to increase time spent on an interim basis.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (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 Rana & Rana has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BENNETT J:

1. The parties have adjusted a number of interim matters in the terms of orders sought at the commencement of these reasons. The wife makes an application that the husband pay her costs of today in the sum of $7,018. The husband does not seek to be heard on quantum but opposes an order being made that he be liable for the wife’s costs as claimed in this instance.

2. The relief that has been obtained today and provided for in paragraphs 1,2,4,5 and 6, was clearly semaphored when the matter was in court on the last occasion even prior to the wife filing a formal application. The fact that the husband would not agree to a dollar for dollar order necessitated the wife making a discrete application and she has succeeded on that application. To the extent that the wife may receive money for costs in to the future, her costs of making the application are not covered by the order. I am satisfied that there are circumstances in this case which justify a departure from the usual position whereby each party pays his or her own costs in family law proceedings. 

3. Turning to what costs order that should be made, if any, I take into account the matters set out in section 117(2A) of the Family Law Act 1975.  I’m not going to take each matter not account, only those which I think are relevant. 

4. The first matter is the respective legal positions of the parties (s.117(2A)(a) of the Act.  The wife’s legal position in my assessment is relatively simple and straightforward.  She doesn’t have a means of generating funds through personal employment.  She does not receive investment income.  She receives pretty much what the husband and entities associated with him pay her.  I am satisfied that neither party has so much money that he/she should have to incur and pay costs incurred to pursue actions or proceedings that should have been unnecessary. The husband is entitled to have “legal costs” paid from a fund as ordered by the Federal Court in ASIC’s proceedings against him and B Pty Ltd. The effect of the Order is to oblige the husband to facilitate payment of the wife’s costs paid from that fund too.

5. Neither party are in receipt of Legal Aid.  This is not a proceeding which has been required because of noncompliance with an order. 

6. It is, in some respects, a matter which falls within section 117(2A)(c) in that the husband chooses to conduct these proceedings in a strategically piecemeal way which, in my if acceded to, would have the impact of putting the wife under undue pressure. Any such pressure generally diminishes the ability of the parties to consider sensible resolutions of real issues in the proceedings.

7. To the extent that Ms Renwick relies on a lack of understanding of the wife’s financial circumstances, I am not satisfied that that is a matter which should have delayed the husband accepting the merit of the proposal as contained in the correspondence of 19 August 2021 from the wife’s practitioners to the husband’s practitioners.  Something that seems to not percolate to the surface in these proceedings, at least insofar as the husband is concerned,  is that every time these parties come to court to argue over a small matter a relatively large amount of costs is incurred.  An incremented approach is an expensive approach. To suggest, as the husband does, that he be able to “consider” a dollar for dollar costs order in favour of the wife as and when (but not before) she has depleted herself of funds is, in my view, an unsatisfactory response to the wife’s claim.  Legal costs are one of the great certainties of legal proceedings.  Notably, the husband was not saying that he would commit to such an order when the wife was depleted of funds, it was just that he would merely consider his position at that time.

8. I would not characterise this as a proceeding in which the husband has been wholly unsuccessful, but it does appear to be a proceeding which, within the context of section 117(2A)(g), the wife may be considered to have been significantly successful. 

9. I am satisfied that it is just that the husband pay the wife’s costs as claimed and will order accordingly. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.

Associate:

Dated:       30 August 2021