Safi & Rafiq (No 5)

Case [2024] FedCFamC1F 117

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Safi & Rafiq (No 5) [2024] FedCFamC1F 117

File number: SYC 436 of 2022
Judgment of: CAMPTON J
Date of judgment: 5 March 2024
Catchwords: FAMILY LAW – COSTS – Where the wife seeks costs pursuant to s 117 of the Family Law Act 1975 (Cth) of the husband’s Application for Review of a registered arbitral award on an indemnity basis – Where the husband did not make submissions as to the costs order – Where the husband was placed on notice that his relief in his Application for Review and Amended Application for Review was likely incompetent and was provided with three opportunities to amend – Where the husband did not adequately amend his relief sought – Costs ordered in a fixed sum.
Legislation:

Family Law Act 1975 (Cth) ss 13E, 13J, 13K, 45A, 79, and 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.13 and 12.17
Cases cited:

Graham & Squibb (2019) FLC 93-892; [2019] FamCAFC 33

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

Munday v Bowman (1997) FLC 92-784

Safi & Rafiq (No 2) [2023] FedCFamC1F 917

Safi & Rafiq (No 4) [2024] FedCFamC1F 49

Safi & Rafiq [2023] FedCFamC1F 692

Sfakianakis& Sfakianakis (2019) 59 Fam LR 419; [2019] FamCAFC 54
Division: Division 1 First Instance
Number of paragraphs: 30
Date of last submission/s: 16 February 2024
Date of hearing: Determined in chambers
Place: Sydney
Solicitor for the Applicant: Benchmark Conveyancing Lawyers
Solicitor for the Respondent: Double Eight Legal

ORDERS

SYC 436 of 2022

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

MS SAFI

Applicant
AND:

MR RAFIQ

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

5 MARCH 2024

THE COURT ORDERS THAT:

1.The husband pay the wife’s costs in the fixed sum of $62,500 within 21 days of the date of this order.

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

REASONS FOR JUDGMENT

CAMPTON J:

  1. These reasons determine the application for costs of Ms Safi (“the wife”) of and incidental to:

    (a)The Application in a Proceeding of Mr Rafiq (“the husband”) filed 31 July 2023 seeking that the wife’s Application to register…

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Details
AGLC
Safi & Rafiq (No 5) [2024] FedCFamC1F 117
Case
[2024] FedCFamC1F 117
Decision Date

CaseChat Overview and Summary

In the case of Safi & Rafiq (No 5), the wife, Ms Safi, sought costs from the husband, Mr Rafiq, under section 117 of the Family Law Act 1975 (Cth). The husband had filed an Application for Review of a registered arbitral award on an indemnity basis. The husband did not make submissions regarding the costs order, and he was provided with multiple opportunities to amend his relief sought, which he failed to do adequately. The Federal Circuit and Family Court of Australia (Division 1) ordered the husband to pay the wife's costs in a fixed sum.

The legal issues that the court was required to decide included whether the husband's Application for Review and Amended Application for Review were misconceived and whether his relief sought was competent. The court also needed to determine whether the wife had established justifying circumstances to order the husband to pay her costs. Furthermore, the court had to decide whether to order the husband to pay the wife's costs on an indemnity or ordinary basis, and whether the costs should be fixed or assessed or agreed.

The court's reasoning and outcome were based on the husband's unsuccessful attempts to object to the registration of, set aside, or vary the Award. The court found that these attempts were misconceived and doomed to fail, which was a significant factor in establishing justifying circumstances for ordering the husband to pay the wife's costs. Additionally, the court noted that the wife had made an offer to the husband to withdraw his Further Amended Application in an Arbitration or pay her costs "thrown away" by reason of the amendment. The husband's response indicated that they would be relying on the Further Amended Application. The court concluded that the wife had established circumstances justifying departing from the position that each party pay their own costs and making a costs order in her favour.

The court ordered the husband to pay the wife's costs in the fixed sum of $62,500 within 21 days of the date of the order. The form of the order is subject to the entry in the Court’s records, and this copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors or to record a variation to the order.

Orders

Orders of the court

SYC 436 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS SAFI

Applicant

AND:

MR RAFIQ

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

5 MARCH 2024

THE COURT ORDERS THAT:

1. The husband pay the wife’s costs in the fixed sum of $62,500 within 21 days of the date of this order.

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.

Background

Background to the litigation

For the reasons that follow, the husband is ordered to pay the wife’s costs fixed in the sum of $62,500 within 21 days.BACKGROUND The husband was born in 1953 in Country O and is 70 years old. The wife was born in 1967 in Country Q and is 56 years old. They married in 2004 and separated on 2 December 2020. They are not yet divorced. Their child, X was born 2006 and is currently 17 years old. X and the wife live in Australia. The husband lives in Country B. The wife commenced proceedings in the Federal Circuit and Family Court of Australia (Division 2) seeking orders for property adjustment pursuant to s 79 of the Act. By way of a Response to an Initiating Application filed on 8 March 2022, the husband sought different orders as to the adjustment of property. On 22 November 2022 a consent order was made pursuant to s 13E of the Act referring the totality of the matter to arbitration and transferring it to the Federal Circuit and Family Court of Australia (Division 1). The arbitration was conducted by Mr C on 26 and 27 April 2023. The Award was made and published on 21 June 2023. The Award provided for the wife to receive 57.5 per cent of the property of the parties, and for the husband to received 42.5 per cent. Orders were made registering the Award on 22 August 2023. On 19 September 2023, the husband filed an Application in an Arbitration for review of the Award and for a stay of the enforcement of the Award until determination of the review. The stay was determined on 24 October 2024 (see Safi & Rafiq (No 2) [2023] FedCFamC1F 917). It was partially successful on condition. Additional orders were made that permitted the husband to amend his Application in an Arbitration. The husband filed an Amended Application in an Arbitration on 8 November 2023. A hearing of that Amended Application occurred on 6 February 2024. Reasons were delivered on 8 February 2024. Findings were made that the husband had been afforded three opportunities to amend his application, that his ss 13J and 13K reviews as amended had no reasonable prospects of success and that the husband had failed to identify a competent order he would seek should he be successful in reviewing the Award. Orders were made pursuant to s 45A of the Act on 8 February 2024 that the husband’s Application in an Arbitration, as amended, be dismissed. Other orders were made:3. On or before 15 February 2024 the wife file and serve any minute of order as to costs, affidavit in support thereof and written submissions of no more than three pages.4. In the event the wife complies with Order 3, the husband on or before 22 February 2024 file and serve any minute of order as to costs, affidavit in support thereof and written submissions of not more than three pages.5. The costs judgment is otherwise reserved to chambers. THE RELIEF SOUGHT AS TO COSTS In a Response to an Application in an Arbitration filed 22 November 2023, in addition to seeking that the husband’s Amended Application in an Arbitration filed 8 November 2023 be dismissed, the wife also sought for the husband to pay her costs as assessed or agreed. The wife in the costs application relied upon her affidavit in support of her Response filed on 22 November 2023 and on an affidavit of her solicitor filed 16 February 2024.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Full Court has made clear that it is unnecessary to spell out detailed reasons for decisions in costs matters. I shall refer to such s 117(2A) matters as are relevant and engaged here.CONSIDERATION Pursuant to the Award, each party has the benefit of property of not dissimilar value, in the range of $922,000 to the husband and $1,247,000 to the wife. The wife submits that the husband has not, as required by paragraph 4 of the Award, paid to her the determined adjusting sum of $128,499. She has the sole care and responsibility of X. The husband’s legal fees are being paid “from an unknown source”. The parties’ financial circumstances are a factor to be given some weight. The wife identified that “all of the husband attempts to object to the registration of, set aside of and/or vary” the Award have been wholly unsuccessful. I accept that submission. The unsuccessful objection to registration of the Award was misconceived and doomed to fail. The summary dismissal of the husband’s Application for Review was because it had no reasonable prospect of success. As constructed, his review applications were also misconceived. These considerations, in and of themselves, are a very significant, if not determinative, factor in establishing a justifying circumstance to order the husband pay the wife’s costs. On 2 February 2024, the wife wrote the husband by way of offer requesting that the husband withdraw his Further Amended Application in an Arbitration, or that he pay the wife’s costs “thrown away” by reason of the amendment. By way of response on 5 February 2024, the husband’s solicitor indicated that they would be relying on the Further Amended Application. I find that for the above reasons, the wife has established circumstances which justify departing from the position that each party pay their own costs and the making of a costs order in her favour.THE BASIS OF COSTS TO BE PAID – INDEMNITY OR ON AN ORDINARY BASIS - FIXED OR AS ASSESSED OR AGREED An order for indemnity costs is a significant departure from the normal standard and requires something exceptional (see Harris & Dewell (No 2) (2018) FLC 93-863). Holden CJ in Munday v Bowman (1997) FLC 92-784. (“Munday v Bowman”) provided some examples of circumstances that might justify the awarding of indemnity costs being:(a)Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts…(b)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud…(c)Evidence of particular misconduct causing loss of time to the court and to other parties…(d)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions…(e) An imprudent refusal of an offer to compromise.