Rasheem & Rasheem (No 2)

Case [2022] FedCFamC1F 666

Federal Circuit and Family Court of Australia

(DIVISION 1)

Rasheem & Rasheem (No 2) [2022] FedCFamC1F 666

File number(s): PAC 1536 of 2020
Judgment of: ALTOBELLI J
Date of judgment: 2 September 2022
Catchwords: FAMILY LAW – COSTS – Disclosure – Indemnity costs order made.
Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited:

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123; [2005] FamCA 158

Idoport Pty Limited v National Australia Bank & Anor [2007] NSWSC 23

Kohan and Kohan (1993) FLC 92–340; [1992] FamCA 116

Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93–664; [2015] FamCAFC 157

Parke & The Estate of the Late A Parke (2016) FLC 93–748; [2016] FamCAFC 248

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

Phillips & Hansford (2020) FLC 93–941; [2020] FamCAFC 28

Division: Division 1 First Instance
Number of paragraphs: 37
Date of hearing: 6 June 2022
Place: Sydney (via videoconference)
Counsel for the Applicant: Mr Stapleton
Solicitor for the Applicant: Keypoint Law
Solicitor for the Respondent: Ms Armstrong, Veritas Law Firm
Table of Corrections
2 February 2023 Paragraph numbering changed from [2]–[38] to [1]–[37].

ORDERS

PAC 1536 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS RASHEEM

Applicant
AND:

MR RASHEEM

Respondent

order made by:

ALTOBELLI J

DATE OF ORDER:

2 SEPTEMBER 2022

THE COURT ORDERS THAT:

1.Within 14 days of these orders the husband pay the wife’s costs of and incidental to the below applications on an indemnity basis fixed in the sum of $133,641.20:

(a)Application in a Case filed 6 July 2020;

(b)Application for Review filed 21 November 2021;

(c)Application in a Proceeding filed 26 November 2021; and

(d)Application for Costs contained in letter dated 6 May 2022.

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 Rasheem & Rasheem has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALTOBELLI J:

INTRODUCTION

  1. These reasons for judgment explain why the Court has made an order for costs against the husband arising out of interim proceedings to date.

    BACKGROUND

  2. Matters of general background to this case are set out at [5]–[9] of my reasons for judgment delivered…

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AGLC
Rasheem & Rasheem (No 2) [2022] FedCFamC1F 666
Case
[2022] FedCFamC1F 666
Decision Date

CaseChat Overview and Summary

The case of Rasheem & Rasheem (No 2) involves a dispute between the husband and wife concerning costs arising from interim proceedings in their family law case. The husband has been found to have repeatedly failed to comply with orders for full and frank disclosure of documents, leading the wife to seek costs associated with the various interim hearings and applications. The case was heard by the Federal Circuit and Family Court of Australia, with the Court's decision and reasoning detailed in its reasons for judgment.

The central legal issue in this case is whether the husband should be held responsible for the wife's costs, on an indemnity basis, due to his failure to comply with disclosure orders and the subsequent need for further interim hearings and applications. The Court had to consider various factors under section 117 of the Family Law Act 1975 (Cth), including the financial circumstances of the parties, their conduct in relation to the proceedings, and whether the proceedings were necessitated by the husband's failure to comply with previous court orders.

The Court found that the husband's repeated non-compliance with disclosure orders was a significant factor in the need for further interim hearings and applications, leading to additional costs for the wife. The Court also noted that the husband had the capacity to pay the spousal maintenance ordered in the November 2021 interim orders but had failed to disclose his full financial circumstances. Based on these findings, the Court concluded that an indemnity costs order was appropriate. The Court considered the factors set out in section 117(2A) of the Act and found that the husband's conduct warranted such an order.

The Court ordered that the husband pay the wife's costs of and incidental to the specified applications on an indemnity basis, fixed in the sum of $133,641.20. This amount is to be paid within 14 days of the Court's orders. The Court's decision highlights the importance of compliance with disclosure orders in family law proceedings and the potential consequences for parties who fail to adhere to court orders.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. Within 14 days of these orders the husband pay the wife’s costs of and incidental to the below applications on an indemnity basis fixed in the sum of $133,641.20:

(a) Application in a Case filed 6 July 2020;

(b) Application for Review filed 21 November 2021;

(c) Application in a Proceeding filed 26 November 2021; and

(d) Application for Costs contained in letter dated 6 May 2022.

Background

Background to the litigation

These reasons for judgment explain why the Court has made an order for costs against the husband arising out of interim proceedings to date.BACKGROUND Matters of general background to this case are set out at [5]–[9] of my reasons for judgment delivered on 20 April 2022 which is the decision that gives rise to the present costs application. By way of further background, the wife alleges, and the evidence before the Court including its own record confirms, that the husband has repeatedly failed to comply with orders of this Court for the provision of documents by way of full and frank disclosure. The wife has sought interim orders on a number of occasions. At times, the interim hearings were delayed due to the wife and at other times because of the husband. Finally, on 1 November 2021 a Senior Judicial Registrar made a number of interim orders relating to spousal maintenance in various forms (“the November 2021 interim orders”). The husband, as he was well entitled to do, filed an Application for Review on 21 November 2021 (“the review application”). A stay application in respect to the operation of the November 2021 interim orders was unsuccessful. The review application was heard by this Court on 12 January 2022, and reasons for judgment were published on 20 April 2022 (“the April 2022 interim orders”). The review application was dismissed save for the Court increasing the amount of periodic spousal maintenance payable by the husband. The husband’s main argument on the review application was that he did not have the capacity to pay spousal maintenance in accordance with the November 2021 interim orders. This issue was dealt with at [20]–[27] of the Court’s reasons for judgment published on 20 April 2022. The Court was satisfied on the evidence before it that the husband did have capacity to pay in circumstances where he had failed to comprehensively disclose his financial circumstances to the Court. The present application by the wife is for costs (“the costs application”) arising out of the present costs hearing, the husband’s unsuccessful review application, his unsuccessful stay application, and the interim hearing before the learned Senior Judicial Registrar.EVIDENCE In support of her case, the wife relied on the following material:(a)Reasons for Judgment of Altobelli J dated 20 April 2022;(b)Her Case Outline filed 19 May 2022;(c)Her affidavit and accompanying exhibits filed 19 May 2022; and(d)Her Case Outline filed on 9 December 2020. In support of his case, the husband relied on the following material:(a)His Case Outline filed 20 May 2022;(b)His affidavit filed 13 December 2021;(c)Affidavit of Ms C filed 21 November 2021;(d)His Tender Bundle marked FK-4 dated 12 January 2022; and(e)His written submissions and case outline filed 13 December 2021.THE APPLICABEL LAW The law relating to costs in family law proceedings is well settled and is set out in detail in the Full Court decision of Parke & The Estate of the Late A Parke (2016) FLC 93-748.

Evidence

Evidence Before The Court

The present application by the wife is for costs (“the costs application”) arising out of the present costs hearing, the husband’s unsuccessful review application, his unsuccessful stay application, and the interim hearing before the learned Senior Judicial Registrar.EVIDENCE In support of her case, the wife relied on the following material:(a)Reasons for Judgment of Altobelli J dated 20 April 2022;(b)Her Case Outline filed 19 May 2022;(c)Her affidavit and accompanying exhibits filed 19 May 2022; and(d)Her Case Outline filed on 9 December 2020. In support of his case, the husband relied on the following material:(a)His Case Outline filed 20 May 2022;(b)His affidavit filed 13 December 2021;(c)Affidavit of Ms C filed 21 November 2021;(d)His Tender Bundle marked FK-4 dated 12 January 2022; and(e)His written submissions and case outline filed 13 December 2021.THE APPLICABEL LAW The law relating to costs in family law proceedings is well settled and is set out in detail in the Full Court decision of Parke & The Estate of the Late A Parke (2016) FLC 93-748. An application for costs is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) of the Act sets out the general presumption that each party to the proceedings shall bear their own costs. This is subject to s 117(2), which provides that:If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as the court may make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just. Section 117(2A) sets out the matters that the Court is to have regard to: (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. Although the Court is required to consider each of the abovementioned factors, it is plain that their relevance to a particular matter will depend upon the circumstances of that case and they should be considered in that light. That is, no one factor prevails over another and it is a question of the weight that is to be afforded to each of the relevant factors depending on the circumstances of the matter (Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664 at [24]). There is also “nothing to prevent any factor being the sole foundation for an order for costs” (Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123 at [41]).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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