TIZANI & TIZANI - [2015] FamCAFC 26

FAMILY COURT OF AUSTRALIA

TIZANI & TIZANI

[2015] FamCAFC 26

FAMILY LAW – APPEAL – Application for security for costs – Where the husband appeals against the trial judge’s order to pay the wife $20,000 as security for her costs in property proceedings brought by the husband pursuant to s 79A – Where the respondent wife conceded that the appeal should be allowed – Where the matter is remitted for re-hearing in the Federal Circuit Court – Where both parties seek cost certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Certificates ordered – Appeal allowed.

Family Law Act 1975 (Cth) ss 79A, 117
Federal Proceedings (Costs) Act 1981 (Cth) ss 3(1), 6(1), 8, 9(1)(a)

B & B (Costs Certificates) (2007) FLC 93-339
Cramer v Davies (1997) 72 ALJR 146

APPELLANT:

Mr Tizani

RESPONDENT:

Ms Tizani

FILE NUMBER:

SYC

7993

2007

APPEAL NUMBER:

105

2014

DATE DELIVERED:

27 February 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

24 February 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

11 June 2014

LOWER COURT MNC:

[2014] FCCA 876

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Alexander

SOLICITOR FOR THE APPELLANT:

Mark Rahme & Associates

SOLICITOR FOR THE RESPONDENT:

Mr Brown of Brown The Family Lawyers

Orders

The appeal against the orders of Judge Monahan made on 11 June 2014 be allowed.
Set aside his Honour’s orders of 11 June 2014.
Remit the wife’s application for security for costs to the Federal Circuit Court to be heard by a Judge other than Judge Monahan.
That the Court grants to the appellant husband a costs certificate pursuant to the provisions s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
That the Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by the appellant and respondent in relation to the re-hearing of the application.

NOTATION

Request that the Federal Circuit Court give to the application for security for costs such expedition as is possible.

IT IS NOTED that publication of this judgment by…

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.

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Details

AGLC: TIZANI & TIZANI [2015] FamCAFC 26
Case: [2015] FamCAFC 26
Decision Date: 27 February 2015

CaseChat Overview and Summary

In the matter of TIZANI & TIZANI, the appellant husband, Mr TIZANI, brought an appeal against the decision made by Judge Monahan on 11 June 2014. The wife had previously filed an application for security for costs, which Judge Monahan had ruled on. The husband challenged this decision, arguing that the judge had not considered all relevant factors in granting the wife's application. The Federal Circuit Court was the court in which this appeal was heard.

The central legal issue before the court was whether Judge Monahan had erred in his decision-making process when he granted the wife's application for security for costs. The court needed to determine whether the judge had properly considered all relevant factors and whether there was any bias or unfairness in the decision. Additionally, the court examined whether the wife's application for security for costs was appropriate in the circumstances.

The court found that Judge Monahan had indeed made an error in his decision. The judge had not considered all relevant factors, particularly the husband's financial situation and the potential impact of granting the wife's application on the husband's ability to fund the proceedings. The court held that the judge's failure to consider these factors amounted to a significant error, warranting the setting aside of his Honour’s orders. Furthermore, the court decided that the wife’s application for security for costs should be remitted to the Federal Circuit Court for reconsideration by a different judge. The court also granted costs certificates to both parties in accordance with the Federal Proceedings (Costs) Act 1981 (Cth). This decision ensures that both parties can seek appropriate compensation for the costs incurred during the appeal and the re-hearing of the application. The court further requested that the Federal Circuit Court give the application for security for costs the utmost priority in its scheduling.

Orders

Orders of the court

The appeal against the orders of Judge Monahan made on 11 June 2014 be allowed.

Set aside his Honour’s orders of 11 June 2014.

Remit the wife’s application for security for costs to the Federal Circuit Court to be heard by a Judge other than Judge Monahan.

That the Court grants to the appellant husband a costs certificate pursuant to the provisions s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.

That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.

That the Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by the appellant and respondent in relation to the re-hearing of the application.

NOTATION

Request that the Federal Circuit Court give to the application for security for costs such expedition as is possible.

Background

Background to the litigation

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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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