Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION

Manesh & Manesh [2021] FedCFamC1A 4 
Appeal from:	Manesh & Manesh [2020] FamCA 792	
		
Appeal number(s):	SOA 86 of 2020	
		
File number(s):	MLC 8955 of 2019	
		
Judgment of:	ALDRIDGE, WATTS & AUSTIN JJ	
		
Date of judgment:	8 September 2021	
		
Catchwords:	FAMILY LAW – APPEAL – COSTS – Written submissions on the issue of costs – Where the appeal was wholly unsuccessful – Where both parties seek costs –
Where written offers do not carry any weight – Respondent’s claim for costs is not excessive – Appellant to pay respondent’s costs in a fixed sum. 	
		
Legislation:	Family Law Act 1975 (Cth) s 117
Federal Proceedings (Costs) Act 1981 (Cth) s 9
Family Law Rules 2004 (Cth) Sch 3
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3	
		
Cases cited:	Manesh & Manesh (No. 3) [2021] FamCAFC 113 	
		
Number of paragraphs:	19	
		
Date of last submissions:	20 August 2021	
		
Date of hearing:	Heard by way of written submissions 	
		
Place:	In chambers, delivered in Sydney	
		
The Appellant:	Self-represented litigant	
		
Counsel for the Respondent:	Mr Goddard	
		
Solicitor for the Respondent:	Freeman Family Law	
		
The Independent Children’s Lawyer:	Did not participate in the appeal	

ORDERS
	SOA 86 of 2020
MLC 8955 of 2019	
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION	
BETWEEN:	MR MANESH
Appellant
	
AND:	MS MANESH
Respondent
	
	INDEPENDENT CHILDREN’S LAWYER

order made by:	ALDRIDGE, WATTS & AUSTIN JJ	
DATE OF ORDER:	8 SEPTEMBER 2021	

THE COURT ORDERS THAT:

1.	The appellant pay the respondent’s costs fixed in the sum of $10,178.73.

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

REASONS FOR JUDGMENT
ALDRIDGE, WATTS & AUSTIN JJ:
1	On 16 July 2021 we dismissed the appeal in this matter and directed that the issue as to the costs of the appeal be determined by way of written submissions. Those submissions have now been received.
2	The respondent seeks an order that the appellant pay her costs of the appeal in the sum of $10,784 as an indemnity against all her costs, or $8,943.18 (calculated at the time of its preparation pursuant to Sch 3 of the Family Law Rules 2004 (Cth), which is now Sch 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021) (updated with slightly increased amounts) on the basis that the appeal was wholly unsuccessful (s 117(2A)(e) of the Family Law Act 1975 (Cth) (“the Act”)).
3	The appellant, on the other hand, despite his lack of success in the appeal, seeks an order that he be granted a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth). Such a certificate may only be granted if no order as to costs is made (s 9(1)(b) of that Act).
4	Alternatively, the appellant seeks the following orders in a series of cascading fall-back positions:
(1)	Costs should be reserved until after the final hearing in this matter so that the respondent’s allegations of violence can be tested; or
(2)	If a costs order is to be made, the appellant is to be given the option of seeking the reimbursement of those costs if the respondent’s allegations of family violence are not accepted at the final hearing; or
(3)	The costs claimed by the respondent be reduced to $4,931.27.
5	In seeking these orders, the appellant relies on a number of offers he asserts that he made to resolve the appeal, which is a relevant consideration (s 117(2A)(f) of the Act).
6	First, he pointed to a series of offers made between 24 June 2019 and 2 September 2020 (Appellant’s written submissions filed on 30 July 2021, paragraph 2; Annexure “AN-1” to the appellant’s affidavit filed on 4 September 2020) which proposed various substantive parenting orders. They were made prior to the hearing before the primary judge, which took place on 17 September 2020. The offers therefore do not relate to the appeal at all. Further, the orders made by the primary judge were significantly less favourable to the appellant than any of his proposals. We do not accord these offers any weight.
7	The appellant also relied on offers made on 29 January 2021 and 14 April 2021 (Annexure “AN-1” and “AN-2” to the appellant’s written submissions filed on 30 July 2021).
8	Each letter proposed that the appellant would not pursue the appeal if consent orders were made for him to spend supervised time with the child. It is to be recalled that the orders of the primary judge were that the child was not to spend time with the appellant. As the appeal was dismissed, those orders remain in place and the respondent was entirely justified in not accepting them.
9	The offers do not favour the costs outcomes sought by the appellant.
10	As is apparent from the orders proposed by the appellant, his submissions focus on the allegations of family violence made by the respondent in her evidence in the primary proceedings. As he points out, these serious allegations have not yet been tested at a final hearing.
11	This, however, is entirely a red herring. As our reasons for judgment pointed out in Manesh & Manesh (No. 3) [2021] FamCAFC 113, the primary judge did not base the orders that the child not see the appellant on the allegations of family violence. Rather, his Honour gave weight to the very strong wishes of the child not to see the appellant and the evidence of psychological harm that she would be likely to suffer if she was forced to do so.
12	These submissions of the appellant are therefore misconceived.
13	Finally, the appellant continues to maintain that the orders made by the primary judge are not in the child’s best interests. The appellant’s opinion, however, did not establish error and is not relevant.
14	As the appeal was wholly unsuccessful we consider that the circumstances justify the appellant paying the respondent’s costs. As we have already noted, such an order precludes consideration of the application for a costs certificate.
15	There are no exceptional circumstances which justify an order for indemnity costs.
16	The appellant submits that the respondent’s claim for costs is excessive because there was no reason for her to be represented by both counsel and a solicitor, and that counsel should have charged a lower hourly rate.
17	We accept that it was appropriate that the respondent be represented by counsel and that counsel are entitled to be instructed by a solicitor. We do not consider that the costs claimed are at all unreasonable.
18	The respondent also sought her costs of this application on both an indemnity basis and, alternatively, at scale. In the ordinary course, costs are dealt with at the hearing of the appeal itself. Here, the appellant asked for costs to be dealt with separately because he wished to rely on offers as set out above. That course proved entirely fruitless but it required the respondent to incur further legal costs. It is appropriate that the appellant pay them, assessed at scale, which is the sum of $1,235.55.
19	There will be an order that the appellant pay the respondent’s costs fixed in the sum of $10,178.73.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Watts & Austin.	

Associate: 

Dated:	8 September 2021