Bahar and Sohrab

[2016] FamCA 627

FAMILY COURT OF AUSTRALIA

BAHAR & SOHRAB [2016] FamCA 627

FAMILY LAW – INTERIM – COSTS

APPLICANT: Ms Bahar

RESPONDENT: Mr Sohrab

FILE NUMBER: CAC 1429 of 2014

DATE DELIVERED: 21 July 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 21 July 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Farra Gesini Dunn

SOLICITOR FOR THE RESPONDENT: Yeend & Associates

Orders

1. Within 28 days the husband pay the wife the sum of $1,500 in relation to the costs associated in the preparation of the Application in a Case filed on 22 June 2016.

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 Bahar & Sohrab 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

FILE NUMBER: CAC 1429  of 2014

Ms Bahar

Applicant

And

Mr Sohrab

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The wife filed an Application in a Case on 22 June 2016 seeking, in effect, orders consistent with s 11(1)(b) Australian Passports Act 2005. Putting aside any difficulty with the way the proposed order is drafted, the intent of the order was clear. That controversy has been resolved by the husband providing to the wife a signed document which satisfies the provisions of s 11(1)(a) of the Australian Passports Act 2005. That controversy was resolved prior to today’s event.

2. The wife seeks the costs of her application which cannot include today’s event and is not agreeing with the husband’s proposal that costs be reserved or that each party bear their own costs in relation to this application.

3. The wife presses her application for costs basically relying upon the husband’s conduct.

4. There have been three requests by the wife made for the husband to consent to the issuing of a passport for the younger child.

5. The first was in August 2015 and the husband gives as his excuse for being non-responsive the fact that at that time he was suffering from major depression.

6. The second was in March 2016 where the husband asserts that the reason that he failed to give consent because he was unsure of the specific proposals in relation to the wife’s travel plans. There are a couple of difficulties with that proposition as a matter of fact. The first is the husband has not put in contest that page 16 of the wife’s affidavit accurately sets out part of a document he sent to the Child Support Agency in which he misrepresents what the Department of Foreign Affairs and Trade have done. In the document to the Child Support Agency he says:

   The delegate of Australia’s Foreign Minister in April 2016 refused to issue [T] (my son) with an Australian passport on grounds of concerns about [the wife] and her brother’s intention to exploit [T’s] identity for their continuing money laundering activities around the world.

7. As annexure E makes plain, the reason DFAT did not issue a passport on the wife’s application was simply that they were unable to obtain the husband’s consent for the issuing of that passport.

8. The other difficulty is the evidence given in [17] of the wife’s affidavit which would lead to a conclusion that the husband, as a condition of consenting to the passport, was wanting to reconnect in some way with T and to have a conversation with him, as a condition for providing his consent. In circumstances where T refused to have a conversation with his father and the husband thereafter withheld his consent.

9. The third occasion which a request was made to the husband to consent to a passport was in May and I accept that the husband’s lawyers take responsibility for a breakdown of communication between themselves and their client and I do not visit any blame on the husband for that.

10. Once the husband was served with the Application in a Case filed 26 June 2016, he in a timely way consented to the result that the wife was attempting to achieve by that application.

11. Given the husband’s two earlier refusals to sign the application for a passport, it is just that the husband pay for the costs of the preparation of the Application in a Case and the affidavit in support of that application and I will make an order that the husband do that.

12. In order to avoid any further issue in relation to assessment of costs, and given that the lawyers for the husband agrees that wife’s estimate of her reasonable cost at $1,500, is appropriate, I will make an order that the husband within 28 days pay the wife the sum of $1,500 in relation to the costs associated in the preparation of the application and affidavit that was filed on 22 June 2016. 

I certify that the preceding twelve (12) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 21 July 2016

Associate: 

Date:  25.7.16