Amari and Sidkar (No 2)

[2019] FamCA 611

FAMILY COURT OF AUSTRALIA

AMARI & SIDKAR (NO. 2) [2019] FamCA 611

FAMILY LAW – SECURITY FOR COSTS

Family Law Act 1975 (Cth) s 117

Luadaka & Luadaka [1998] FamCA 1520

APPLICANT: Mr Amari

RESPONDENT: Ms Sidkar

FILE NUMBER: PAC 229 of 2019

DATE DELIVERED: 30 August 2019

PLACE DELIVERED: Canberra

PLACE HEARD: In Chambers

JUDGMENT OF: Gill J

HEARING DATE: In Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Eggshell Skull

SOLICITOR FOR THE RESPONDENT: Sydney Bd Lawyers

Orders

1. The Father’s Application in a Case is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Amari & Sikdar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: PAC 229 of 2019

Mr Amari

Applicant

And

Ms Sidkar

Respondent

REASONS FOR JUDGMENT

1. This judgment concerns an application for security for costs, on an indemnity basis, made by the Father against the Mother in relation to her application concerning their child, X, who is almost fourteen years old.  X currently lives with his Father in Australia, and has spent almost no time with his Mother since May 2015.

2. The Mother’s application is to have X live with her in Country C, although she says that she will amend her application if X expresses a view that he wishes to remain in Australia and if the Family Consultant supports such an outcome as in his best interests.  In such a circumstance the Mother has indicated that she will pursue orders to spend time with X.

3. The parties are in contest regarding the circumstances in which the Father removed X to Australia in March 2016.  The Father says the Mother gave her permission.  The Mother asserts, and has asserted since shortly thereafter that the Father forged her signature on the relevant documents.

The legal approach to an application for security for costs

1. An order for security for costs is an order made on a discretionary basis arising out of the powers set out at s 117 of the Family Law Act 1975. Such a determination is made in the context of the starting position under s 117 being that each party bears his or her own costs.

2. Where a departure from that position is sought to obtain an order for security for costs, the onus to establish the circumstances justifying such an order rests upon the applicant for the order.

3. In Luadaka the Full Court observed that:

   [62] The purpose of an order for security is to secure justice between the parties by ensuring that an unsuccessful party does not occasion injustice to the other. In considering whether or not to make an order, apart from those referred to in s117(2A), matters which may be relevant include the following:

   1.It may be relevant to take into account the means of an applicant to satisfy an order for costs if he or she is unsuccessful. Ordinarily the means of the applicant is not alone sufficient to justify an order for costs because of the rule that poverty should be no bar to justice. This is reinforced by s117(1). However, the financial circumstances of the applicant do not prevent an order being made if there are other grounds which justify an order…

   2.The prospects of success is a relevant matter to take into consideration… However, ordinarily the court will not undertake a detailed assessment of the likelihood of the applicant’s success unless it can be demonstrated there is a high probability of success or failure…

   3.It is a relevant consideration whether the applicant’s claim is made bona fide, whether it is genuine and not trivial, vexatious or a sham…

   4.It may be relevant to consider whether or not an order for costs would be oppressive or stifle the litigation…

   5.It may be relevant to consider whether or not the litigation may involve a matter of public importance…

   6.It may be relevant to consider whether or not there has been delay in bringing the application…

   7.Other relevant matters may include any difficulties of enforcing an order for costs and the amount of costs to be incurred.

4. The Full Court in Luadaka emphasised that this was not an exhaustive list.  In considering the list it is important to remember that the objective of such an order is ensuring that injustice is not occasioned.

The basis for the application

1. In setting out the evidential basis for the application, and the response, it is appropriate to note that the manner of adducing evidence chosen by each of the parties was for the solicitors for the parties to swear or affirm affidavits, primarily on the basis of instructions given or previous affidavits seen.  There was no direct evidence given in support of the applications.

2. The Father challenged the genuineness of the Mother’s application.  This was on the basis of the lack of contact between the Mother and X, and the Mother’s failure to engage in a pre-filing attempt to resolve the dispute.

3. The Mother’s response to this aspect was that she discovered, after the Father had left, that X had been removed to Australia.  She then took steps to locate him and travelled to Australia to find him.

4. If the Father’s account is accurate, then the responsibility for a lack of time with X rests with the Mother and undermines her application significantly.  If the Mother’s account is accurate then the Court is dealing with an instance of international child removal and the deliberate severance of the relationship between X and the Mother.

5. At present the Court is unable to determine which of these positions may be true and thereby unable to determine that there is a lack of genuineness in the Mother’s application. 

6. The Father criticises the Mother for commencing proceedings without seeking the resolve the matter first.  Given that the Mother resides in Country C, it is unsurprising that the Mother took advantage of the limited time she had in Australia to commence proceedings, particularly if the circumstances are as she alleges.

7. The Father alleges that, by her conduct after commencement of the proceedings, the Mother has engaged in vexatious behaviour.  This included a complaint by the Mother to police in Country C about threats that she alleged she had received to withdraw her proceedings in Australia. 

8. This was said to be in the context of a false complaint that the Father had forged the Mother’s signature in relation to travel documents to Australia.  He says this is demonstrably false as the Department of Immigration and Border Protection (now Department of Home Affairs) dismissed the Mother’s allegation.  It should be noted that the determination of such an issue by Department does not determine the issue for the Court.

9. The Father complained, again under this heading, that the Mother did not pursue resolution of the matter by negotiation.

10. Again, without being able to determine the underlying factual matters I am unable to determine that any of these constitutes vexatious conduct.

11. The Father complains that the Mother disregards the child’s best interests.  This criticism is that the Mother’s application does not reflect X’s best interests.  It is made in the context of the Mother indicating that she may change the nature of her application to merely be about the time she spends with X, dependent upon the assessment of X’s views and best interests by the Family Consultant.  Again, whether or not the Mother’s application accords with or conflicts with X’s best interests is dependent upon fact-finding in relation to this matter.  At present I am unable to determine that Mother’s application is in fact inconsistent with X’s best interests.

12. I am unable to accept that the Father has established that the Mother’s application is less than genuine or is vexatious, or is the product of some ulterior motive as alleged by the Father.

13. The Father complains that the Mother’s application lacks merit.  In part this argument was again reliant upon establishing what is or is not in X’s best interests.  This again is the subject of factual matters which are yet to be established and, while it might be thought that the Mother’s prospects of success are low under circumstances where she has not spent time with X for an extended period, such a general characterisation is insufficient to establish the Mother’s case as being without merit.

14. The Father claimed that there will be a difficulty in enforcing any costs order.  If the Mother is resident in Country C at the time of making the cost order this is true.  It may be thought that there will be limited mechanisms by which a costs order could be enforced if the Father was successful.  Of course, this factor must be considered in light of the starting position being that each party will bear his or her own costs.  There may well be a departure from this position, but it is far from certain that even if the Father is successful that there will be an order for costs that will require enforcing.

15. The Father asserted that he was genuine in his application for security.  The application appears to be made in a timely manner.

16. The Father asserted that there would be no oppression of the substantive case.  It is true that the Mother has conceded that if an order for security for costs was made it would not completely stifle the case but would significantly delay it while the Mother raised funds to meet the security order.  Given the information about the Mother’s income it might be thought that it would take her a lengthy period of time to be able to set aside sufficient money to meet the security order sought by the Father.

17. The Father pointed to his own financial circumstances and noted his difficulties in making his legal payments.  This was in the context of his capacity to save $20,000 for a trip to the United Kingdom, an amount which unfortunately he has now spent on legal fees.

Conclusion

1. There is no need to establish exceptional circumstances to justify the making of an order for security for costs.  There is an obligation to establish sufficient circumstances to justify such an order.  Much of the Father’s application relied upon issues of the prospects and genuineness of the application.  His assertions in respect of these were reliant upon an as yet unestablished factual background.  For this reason he has been unsuccessful in establishing those circumstances.  Absent those circumstances, the balance of the matters that he raises is insufficient to justify making an order for security for costs.

2. The Father’s application in a case is to be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 30 August 2019.

Associate:

Date:  30 August 2019