Bhasin & Bhasin (No 2)
[2023] FedCFamC1F 1037
•5 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bhasin & Bhasin (No 2) [2023] FedCFamC1F 1037
File number: MLC 6473 of 2021 Judgment of: CARTER J Date of judgment: 5 December 2023 Catchwords: FAMILY LAW – PROCEDURAL – Where the matter proceeded on an undefended basis – Where the husband declined to participate in these proceedings – Where the husband pursued litigation outside Australia notwithstanding an anti–suit injunction.
FAMILY LAW – CHILD – Where the husband resides in Country J – Where the child primarily resides in Australia – where the child lives with the wife – Whether the child should be placed on the Airport Watchlist – Where Country J is not a signatory to the Hague Convention on the Civil Aspects of Child Abduction.
FAMILY LAW – PROPERTY – Whether the parties are bound by the Financial Agreement –Whether the agreement should be set aside for unenforceability – Whether a clause is severable.
FAMILY LAW – ENFORCEMENT – Where the husband ceased making payments for interim spousal maintenance and urgent child support – Where there was never an assessment sought for child support.
FAMILY LAW – COSTS – Where the wife sought indemnity costs – Indemnity costs not ordered – Costs ordered in a fixed sum.
Legislation: Child Support (Assessment) Act 1989 (Cth) s 139
Family Law Act 1975 (Cth) ss 60, 60CA, 60CC, 61DA, 90C, 90G, 90K, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited: Bielen & Kozma (2022) 66 Fam LR 59
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
D & D (Costs) (No. 2) (2010) FLC 93-435
Kohan and Kohan (1993) FLC 92-340
Limousin & Limousin (Costs) [2007] 38 Fam LR 478
Munday v Bowman (1997) FLC 92-784
Division: Division 1 First Instance Number of paragraphs: 185 Date of last submissions 13 November 2023 Date of hearing: 23 August 2023 Place: Melbourne Counsel for the Applicant: Mr Schmidt Solicitor for the Applicant: Lander & Rogers The Respondent: Litigant in person (did not participate) ORDERS
MLC 6473 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BHASIN
Applicant
AND: MR BHASIN
Respondent
ORDER MADE BY:
CARTER J
DATE OF ORDER:
5 DECEMBER 2023
THE COURT ORDERS THAT:
Parenting
1.The wife have sole parental responsibility for the child X born 2013.
2.The child live with the wife.
Communication
3.The husband be permitted to communicate with the child via telephone (including WhatsApp, Facetime and Skype) between 6.00 pm and 8.00 pm AEST/AEDT for up to 15 minutes on a regular basis as agreed between the parties or at the request of the child.
Spend time arrangements
4.The child spend time with the husband in Australia, on a supervised basis at times as agreed between the parties (including for school holidays), and for the purposes of such time:
(a)L Contract Service or such other supervised contact service as agreed between the parties in writing be engaged as supervisor;
(b)unless otherwise agreed in writing between the parties, the supervised visits take place at an agreed public location;
(c)the husband meet the costs of supervision;
(d)the husband attend without another adult present, save for;
(i)a member of the husband’s family; and
(ii)the professional supervisor, and
(e)the husband give the wife no less than seven days’ notice of his intended travel dates, and as to the name of the family member who will attend the visit/s with the father, so the agreed time can be confirmed with the supervised contact service.
Airport Watch List Order
5.Each of MS BHASIN AND MR BHASIN and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of X born 2013 from the Commonwealth of Australia.
6.IT IS REQUESTED THAT the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until 26 December 2031.
7.Upon expiration of the period referred to in Order 6 hereof, and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List.
Injunction
8.Until further order, the husband and his servants and/or agents are hereby restrained by injunction from publishing, uploading and/or providing any photographs or video footage of the wife and/or the child that would cause her or his image to appear on any social media platform or any news or publishing organisation including but not limited to YouTube, Facebook, and Instagram.
Property
9.The Financial Agreement entered into between the parties dated 29 August 2022 is set aside.
10.The matter be adjourned to 29 January 2024 to commence at 10:00 am for mention/undefended hearing.
11.On or before 15 January 2024, the wife file and serve:
(a)an Amended Initiating Application, setting out with particularity the orders she seeks pursuant to s 79 of the Family Law Act 1975 (Cth); and
(b)an affidavit in support.
12.Within 48 hours, the wife serve a copy of these orders on the husband, by email.
13.In the event the husband fails to attend at the hearing on 29 January 2024, the wife has liberty to seek to proceed on an undefended basis.
14.Within 28 days the husband pay to the wife:
(a)the sum of $74,000 being the arrears pursuant to Orders 4 and 6 of the orders made 9 September 2021 and owing as at today’s date;
(b)the sum of $43,390 being mortgage repayments the husband was to pay with respect to the Suburb D property pursuant to Order 5 of the orders made 9 September 2021 and owing as at 29 November 2023; and
(c)the wife’s costs fixed at $10,000 in relation to her anti-suit injunction application filed 9 February 2023.
AND THE COURT NOTES THAT:
A.The wife was granted leave pursuant to rule 1.33(2)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to proceed with her application on an undefended basis.
B.Pursuant to rule 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Court may vary or set aside a judgment or order made in the absence of a party.
C.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
The issues I must determine are:
(a)whether leave should be granted to proceed undefended;
(b)what the appropriate parenting orders are for the parties’ one child X who is nine years old;
(c)whether the Financial Agreement executed by the parties on 29 August 2022 should be enforced; and
(d)the enforcement of orders made 9 September 2021 in relation to spousal maintenance and child support.
Leave to proceed undefended
The husband did not attend at the final hearing. He was previously represented, and participated in these proceedings from the time the proceedings were issued in 2021 up to and including at the hearing on 20 February 2023.
The husband was aware of the trial date. He was represented at the hearing on 10 February 2023 when the parties were advised that the matter was listed for a three-day final hearing to commence on 23 August 2023.
On 24 February 2023 I made orders that required the husband to file material. The husband has not complied with those orders.
On 6 March 2023 the husband’s lawyers filed a Notice of Ceasing to Act. He has not participated in these proceedings since that time. He has not filed a Notice of Address for Service.
At the trial on 23 August 2023, counsel for the wife tendered a bundle of emails demonstrating the wife’s attempts to effect service on the husband since he became self-represented, including that she had sent him by email:
(a)orders dated 14 March 2023 (amended on 16 March 2023) served on the husband on 16 March 2023;
(b)orders dated 5 June 2023 served on the husband on 7 June 2023, which included the date of the final hearing, trial directions, and an invitation allowing the husband to apply to attend electronically;
(c)the wife’s Amended Enforcement Application served on the husband on 19 July 2023; and
(d)the wife’s outline of case served on the husband on 2 August 2023.
Counsel for the wife indicated that the husband has not responded to those emails.
On 22 August 2023, my chambers sent an email to the husband attaching the Microsoft Teams link for the hearing on 23 August 2023. No response was received from the husband to this email. The Court has no mobile or telephone number with which to contact the husband.
At the commencement of the hearing on 23 August 2023, the husband was formally called to the courtroom. There was no response to the call.
I am satisfied that all reasonable attempts were made to contact and effect service on the husband. I am also satisfied he knows of the proceedings, that he was aware of the court date and has elected not to participate. In all the circumstances, leave is granted for the matter to proceed on an undefended basis.
BRIEF BACKGROUND
The wife is an Australian citizen. She is 46 years old. She is engaged in home duties, and also works as a contractor, earning about $5,000 per month.
The husband is a Country J citizen. He is 37 years old. He is a sportsman and has played for Country J. He also has business interests in Country J. At the time the parties entered in the Financial Agreement in August 2022, the husband was earning a large sum per annum.
The parties married in late 2012 in City H, Country J. The wife had been married previously, and she remained living in Australia, with her daughters from her first marriage. The husband remained living in Country J but travelled to Australia for a few weeks each year.
The parties’ one child was born 2013. He has lived with his mother throughout his life and spent fairly limited time with his father. The husband travelled to Australia, generally twice each year to see the wife and the child. The wife also travelled on occasion with the child either to Country J, or to wherever the husband was touring, to facilitate time.
In about July 2019 the parties purchased a home in Suburb D in which the wife and child continue to reside.
In early 2020 the wife and child travelled to Country J. They spent extended time there with the husband when it became difficult for them to return to Australia as a result of the COVID‑19 pandemic.
The parties separated in August 2020. At that time, the wife and child returned to Australia.
Proceedings were instituted by the wife on 11 June 2021. The husband filed his response on 7 August 2021. The application and response identified that the dispute related to property matters only. It was apparent from the husband’s response that he consented to the jurisdiction of this Court – and he sought a raft of interim orders, and asked to be excused from particularising the final relief he sought pending discovery.
By consent orders made on 10 August 2021 included an anti-suit injunction. That order provided:
16.The parties personally, and by their servants and agents, be and are hereby restrained by injunction from issuing and/or causing the commencement of any proceedings pertaining to property settlement, spousal maintenance, or alimony or continuing any such proceedings already issued in respect of same, in any jurisdiction other than Australia, including [Country J].
The parties attended an interim hearing on 26 August 2021 before Williams J. Her Honour made orders on 9 September 2021 which provided, inter alia, that:
(a)the wife receive a part property payment of $662,397.50;
(b)the husband pay the wife $8,750 per month by way of interim spousal maintenance;
(c)the husband pay the mortgage for the Suburb D property;
(d)the husband pay the wife a fixed amount of $500 per month for additional expenses regarding the upkeep of the Suburb D property; and
(e)the husband pay the wife $2,037 per month by way of child maintenance and for all school fees in respect of the child and associated school expenses.
The Court was subsequently advised the parties had substantially resolved their dispute and were in the process of drafting consent orders. The Court was informed there were “certain issues relating to [the] finalisation of property matters and a divorce in [Country J] yet to be finalised”.
The matter was then adjourned on several occasions throughout 2022 in circumstances where the parties continued to inform the Court that the dispute had been settled in principle, but the preparation of documents, and the slow progress of divorce proceedings in Country J were causing some delays.
In August 2022 the parties executed a number of documents, including proposed orders by consent, a parenting plan, a binding child support agreement and a Financial Agreement pursuant to s 90C of the Family Law Act 1975 (Cth).
Clause 3(d) of that Financial Agreement provided that the parties would execute a petition for divorce under s 13B of the relevant marriage legislation contemporaneously with the execution of the Financial Agreement. The Financial Agreement was executed on 18 August 2022 by the wife and on 22 August 2022 by the husband. Notwithstanding clause 3(d), the mutual petition for divorce was not executed contemporaneously by either party when they executed the Financial Agreement.
In December 2022, the Court was again informed there were issues with the petition for divorce. I was told the matter may not have resolved and court time for a final hearing may be necessary. I set the matter down for a three-day hearing in August 2023 and listed the matter for mention in February 2023.
The wife was able to have the petition for divorce notarised in late 2022, and in early 2023 the wife attended an appointment with the Department of Foreign Affairs and Trade to finalise the divorce and provide the documents to the Country J Consulate. However, in the meantime the husband withdrew his agreement to the proposed consent orders being made. He also said he no longer agreed with the provisions of the Financial Agreement.
In about early 2023, the husband filed his own petition under the relevant marriage legislation in the Family Court in City H, seeking a divorce on the grounds of cruelty. He filed additional applications in which he sought permanent custody of the child and restraints against the wife.
Orders were made by the Family Court in City H a short time later, on an ex parte basis. Those orders provided for the child to speak with his father by videoconference on a daily basis. In early 2023, the wife was served with that order, the petition and additional applications filed by the husband in the proceedings in Country J.
On 8 February 2023, the wife filed an Amended Initiating Application in this Court seeking that she have sole parental responsibility for the child, that he live with her and spend time as agreed with his father when visiting Australia and have telephone communication with him.
The wife also filed an Application in a Proceeding seeking the husband be injuncted from commencing or continuing proceedings in Country J (“the anti-suit injunction application”). She also sought various interim parenting orders.
The husband was represented at the mention on 10 February 2023, as was the wife. Consent orders were made providing a timetable for the husband to respond to the wife’s Application in a Proceeding. Orders were also made that day for the husband to file an Amended Response setting out the orders he sought in relation to the Financial Agreement, noting that he indicated at that time that the Financial Agreement was not binding or should be set aside. The matter was adjourned to 20 February 2023 to hear the wife’s Application in a Proceeding regarding the forum issues.
The husband remained represented at the hearing on 20 February 2023, and opposed the wife’s anti-suit injunction application. He sought his own orders that the wife be restrained from issuing, commencing, or continuing any parenting application save in Country J. In an affidavit filed on his behalf dated 17 February 2023, the husband deposed that he did not submit to the jurisdiction of this Court in relation to any matrimonial dispute at all. I note the previous anti‑suit injunction made on 10 August 2021 was by consent, and has never been set aside. At the hearing on 20 February 2023 counsel appearing on behalf of the husband sought anti-suit injunctions against the wife in relation to parenting only.
I delivered judgment on 24 February 2023. My orders restrained the husband from continuing proceedings in Country J – in circumstances where he had previously consented to jurisdiction in relation to property, and where the child has always lived in Australia. My orders also directed the husband to file a statement of claim in relation to his assertion that the Financial Agreement was either not binding or should be set aside. The matter was then listed before a Senior Judicial Registrar in relation to the balance of the wife’s Application in a Proceeding on 14 March 2023.
Since the delivery of my judgment on 24 February 2023 the husband has elected to no longer participate in the Australian proceedings. However, he has continued to pursue proceedings in the Family Court in City H.
In March 2023 the husband proceeded with his application for parenting in the Family Court in City H, notwithstanding the orders made by this Court on 24 February 2023. The Family Court in City H held, inter alia, that:
(a)the husband was not bound by the orders made by the Federal Circuit and Family Court of Australia (Division 1) restraining him from continuing the parenting proceedings in Country J;
(b)the anti-suit orders of this Court were not recognised in Country J;
(c)the wife had submitted to the jurisdiction of the Court in Country J for divorce and that included parenting matters; and
(d)the wife was restrained from continuing parenting proceedings in Australia.
The wife has continued her parenting application before this Court. It appears she is therefore in contempt of the Family Court at City H.
On 6 March 2023 the husband’s Australian solicitors filed a Notice of Ceasing to Act in these proceedings. Since then the husband has been self-represented. He has not filed a Notice of Address for Service. He did not appear and was not represented at the hearing before the Senior Judicial Registrar on 14 March 2023. He has not filed an Amended Response to an Initiating Application as required by my orders of 10 February 2023. He also did not file a statement of claim in accordance with my orders of 24 February 2023.
In March 2023 the husband filed a further application in the Family Court, City H seeking various orders including;
(a)a declaration the husband is not bound by any orders of this Court;
(b)the Financial Agreement, binding child support agreement and parenting plan executed by the parties be destroyed;
(c)the wife repay the husband the funds paid to her by way of interim property settlement; and
(d)the wife be restrained from seeking property orders or spousal maintenance orders under Australian law.
The husband has also filed an application seeking that he be permitted to pursue orders for property division in Country J.
In May 2023, the husband ceased making the payments for spousal and child maintenance as ordered by this Court on 9 September 2021.
The Family Court in City H heard the husband’s divorce petition and his application regarding the parties’ child in late 2023. Judgment was delivered a short time later.
The Family Court in City H has dissolved the marriage between the parties, on the grounds of cruelty. That Court was also asked by the husband to grant him “permanent custody” of the parties’ child, but did not accede to that application. I do not know the status otherwise of the husband’s applications before the Court in City H.
THE EVIDENCE
The wife relied on:
(a)her Further Further Amended Initiating Application filed on 23 May 2023;
(b)her Amended Application – Enforcement filed on 19 July 2023;
(c)her affidavit filed on 8 February 2023 (as to paragraph six and the third page of annexure AD-1 only);
(d)her affidavit filed on 22 May 2023; and
(e)her affidavit filed on 23 May 2023.
As the matter proceeded undefended, I need only take into account the wife’s material and evidence.
PARENTING
Section 60CA of the Family Law Act sets out that when deciding whether to make a particular parenting order in relation to children, the best interests of the child must be the Court’s paramount consideration.
In Bielen & Kozma (2022) 66 Fam LR 59 the Full Court observed that means:
28.… the focus of parenting proceedings should be on “the effect on the child” of the parties’ respective proposals (Fairfield & Hoffman (2021) FLC 94-045 at [71]).
Their Honours further said the Court must consider the short and longer term impacts of the proposed orders “upon the child’s physical, emotional and psychological safety, security and well-being”: Bielen at [30].
The objects of Part VII of the Family Law Act inform how I must exercise my discretion. Those objects include ensuring the child has the benefit of both of their parents being meaningfully involved in their lives to the maximum extent consistent with the child’s best interests [s 60B(1)(a)]. The legislation further provides that unless it is contrary to their best interests, a child has a right to know and be cared for, and to spend time and communicate with both of their parents, and other persons significant to their care, welfare and development [s 60B(2)].
There are a range of considerations set out in s 60CC that I must take into account in determining what is in the child’s best interests. Section 60CC(2) of the Family Law Act sets out the primary considerations in determining what is in the child’s best interests. Those require me to consider:
·the benefit to the child of having a meaningful relationship with both of their parents; and
·the need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.
In applying those primary considerations, I must give greater weight to the need to protect a child from harm.
Section 60CC(3) of the Family Law Act sets out a raft of additional considerations that I must also take into account in determining the children’s best interests. The Full Court in Bielen at [35] recently conveniently grouped those as follows:
·Issues relating to the child – including their views, level of maturity, culture and relationships: ss 60CC(3)(a), (b), (g) and (h);
·Issues relating to the parents – including decision making, time spent with the child, whether a parent has fulfilled obligations, their attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i);
·Issues of family violence: ss 60CC(3)(j) and (k);
·The likely effect if a child’s circumstances are changed: s 60CC(3)(d);
·Practical difficulty of implementation: s 60CC(3)(e);
·Avoiding further proceedings: s 60CC(3)(l); and
·Other relevant matters: s 60CC(3)(m).
Primary considerations
The husband has filed no material in this Court regarding parenting.
The wife acknowledges that the child will benefit from having both of his parents meaningfully involved in his life.
In this matter, the wife does not assert any family violence, abuse or neglect. However, it is the wife’s case there is an unacceptable risk the child could be removed from her care by the husband and taken to Country J. She says that would be traumatic for the child and accordingly, the child’s time with the husband must necessarily be restricted and supervised to mitigate that risk. I will consider this risk later in these reasons.
I note the child currently enjoys regular electronic communications with his father, which the wife proposes should continue. In addition, the wife proposes the husband have time with the child, on a supervised basis, when he travels to Australia.
Whilst not ideal, I am satisfied the proposals by the wife for some limited physical time, albeit supervised, together with electronic communication will promote a meaningful relationship between the husband and the child. The child has had limited time with his father throughout his life – and as I understand it, the wife concedes the child’s relationship with his father remains significant and important to the child.
Additional considerations
Issues relating to the children – including their views, level of maturity, culture and relationships: ss 60CC(3)(a), (b), (g) and (h)
The child is almost ten years old. He has an established life here in Australia, having lived here, with his mother and sisters since his birth. The longest period the child spent in Country J was for eight months when the COVID-19 pandemic restricted the wife and child from returning to Australia.
The child has very close and strong relationships with his mother and with other members of the maternal family. His sisters are involved in picking him up from school, taking him to events or extra-curricular activities, and to friends’ houses. They also help him with his homework. The wife is assisted by the maternal grandmother who cares for the child on nights the wife is working late.
The husband lives in Country J and has work commitments that restrict him from travelling frequently to Australia. That has meant the child has not spent substantial or consistent time in the husband’s care. He has not spent overnight time with his father in the absence of his mother. Given the physical distance separating them, and their more limited interactions, the child’s relationship with his father is likely less developed than with his mother. I do not know whether the child has any connection with the paternal family.
Although the child has not spent substantial time in the care of the husband since late 2020, the wife deposes the child continues to have a loving relationship with him. There is nothing to suggest that there are any significant difficulties with the child’s relationship with the husband, aside from the physical distance separating them.
The parties are both of the same cultural background. The wife will be able to ensure the child remains connected to his Country J heritage and rich culture.
I do not have any evidence about the child’s views.
Issues relating to the parents – including decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i);
The wife has been, and remains, the primary carer for the child. She appears to be attending to his care, welfare, and development in a satisfactory manner.
During the marriage, the husband travelled to Australia approximately twice per annum to stay for a short visit. The wife also travelled with the child overseas to facilitate time between the child and his father from time to time.
Since the parties’ separation in August 2020, the wife has not travelled to Country J and has had little to no communication with the husband.
The husband last visited the child in Australia in late 2022. There had been some discussion between the husband and one of the wife’s daughters that he would visit again in early 2023 but that trip did not eventuate. At trial, counsel for the wife indicated that electronic communication between the husband and the child was continuing and generally occurred on a regular basis.
In the past, the husband provided financial support for the child. However, the husband ceased making any contributions in April 2023. Accordingly the wife now bears the whole responsibility for financially supporting the child and meeting his needs.
Issues of family violence: ss 60CC(3)(j) and (k);
Family violence issues were not raised before me.
The likely effect if a child’s circumstances are changed: s 60CC(3)(d);
The wife’s proposals do not represent any significant change to the child’s circumstances. He has always lived with his mother, and it would appear she substantially makes the decisions for his care, welfare and development.
Similarly, the parties’ arrangement of telephone communication and the husband travelling to Australia to visit the child is not a novel agreement. During the parties’ relationship, the husband would travel to Australia twice a year for about a week to spend time with the wife and the child. Post-separation in August 2020, the husband has travelled to Australia to see the child.
The wife’s proposals for the husband’s face to face time in Australia to be subject to professional supervision would be a departure from what the child has otherwise experienced. However, in circumstances where there is, in my view, a real risk that the child could be removed from the wife’s care, supervised time is necessary to ameliorate that risk.
Practical difficulty of implementation: s 60CC(3)(e);
There is no suggestion the husband will not be able to afford the costs of supervised time. I also understand the husband is able to afford to travel to and from Australia to visit the child.
The husband is a professional sportsman playing for a Country J team. I am unsure as to how his professional commitments may impact his ability to spend time with the child. The wife deposed the husband engages in “short-term contract […] work including in Australia when such work presents itself”. That seems to suggest the husband may occasionally accept contracts that might require him to travel overseas. However, I have no evidence before me as to his availability, his training schedule, or any touring that he may be required to do as part of the Country J team or from other contracts.
Avoiding further proceedings: s 60CC(3)(l);
It is generally in a child’s best interests that orders which will avoid further proceedings are preferable. In this matter, the wife seeks an order for ongoing supervision. For the reasons to which I will shortly turn, I am satisfied that professionally supervised time is necessary in this matter. I am unable to say when that will no longer be necessary. Accordingly, if the parties are unable to reach an agreement between themselves in due course, it may be that the husband does have to issue further proceedings at some point to dispense with the need for supervised time, if that becomes appropriate in the future.
WHAT ARE THE APPROPRIATE PARENTING ORDERS?
How should parental responsibility be allocated?
Pursuant to section 61DA of the Family Law Act, I must apply a presumption that it is in the child’s best interests for his parents to have equal shared parental responsibility for him. That presumption can be rebutted by evidence that it would not be in his best interests if parental responsibility was shared.
It is the wife’s case that she have sole parental responsibility for the child.
I have no evidence that the parties have the ability to negotiate together and reach agreement in relation to the child’s long-term welfare. The husband has obtained a divorce from the wife in Country J, alleging mental torture perpetrated by her on him. It is apparent from the judgment by the Family Court of City H that the husband regards the wife with much distrust. He also regards her as deceitful and as a deficient parent. In those circumstances, I anticipate the parties will struggle to respectfully liaise with each other and reach agreements for their child.
Decisions will need to be made for the child, including regarding his health and education. In circumstances where the husband is residing overseas and has refused to participate in these proceedings, and where I have no evidence that the parties are able to liaise with each other to reach agreements it seems to be in the child’s best interests that the wife have sole parental responsibility.
Spend time arrangements and communication with the husband
I am satisfied that the child’s best interests require that he remain living with his mother in Australia.
The husband primarily resides in Country J. Aside from the eight months the wife and child lived in Country J due to COVID-19 restrictions, the child’s home has always been here in Australia. He is close to his maternal grandmother and is supported by his older sisters. The wife has also been the child’s primary carer since his birth.
In relation to the husband’s time with the child, regrettably for the following reasons, I am of the view that it needs to remain professionally supervised. There is a real risk of the child being removed from the wife’s care, and if that occurred, it would be extremely traumatic for the child.
Risk of removal
It appears the husband wishes to assume primary care of the child. That was his application before the Family Court at City H, whose judgment, delivered in late 2023, recorded that the husband:
128.… prayed for grant of permanent custody of his minor son … submitting that it was morally, psychological [sic] and mentally disastrous for the minor son to be with the [the wife] who consistently acted detrimentally to his welfare right from his birth. Additionally, it has also been submitted that since a criminal case is pending against [the wife], said fact is an important factor weighing in favour of the [husband]…
The judgment delivered by the Family Court in City H makes it plain that the husband continues to seek the primary care of the child, that he regards the child as being at risk in the wife’s care and that she is a deficient parent.
The Family Court in City H did not make the order sought by the husband, on the basis that the child is an Australian citizen, present in Australia and “it is clear that if any order is passed by this Court same would not be implemented in Australia [sic]” (at [129]). The Court further observed that the wife’s:
130.… intent to alienate the minor son from [the husband] and his family is evident in the facts and circumstances ... yet any order to deliver the permanent custody of the minor child to the [husband] would remain a paper decree only.
That is, it appears the Family Court in City H formed a view that the husband’s application for “permanent custody” had merit, but would be practically difficult to implement. In those circumstances, the Family Court in City H said time should occur between the child and the husband in Country J (with the wife to bring the child to Country J for at least half of all school holidays each year) and in Australia (unsupervised and for “sufficient duration”). The Court further said:
130.… while granting visitation right [sic] to [the husband] to meet his son for appropriate duration in [Country J] and Australia and video call chatting with the minor son, the issue of permanent custody of the minor son … is left open to be adjudicated again in a separate proceeding as and when situation [sic] so arises.
Accordingly, it appears the Family Court in City H is contemplating there could be a reconsideration of the child’s primary carer arrangements at a later stage.
There is nothing before this Court that would support any finding that the child is at risk in the wife’s care. However, it is apparent from the judgment of the Family Court in City H that the husband remains highly critical of the wife. He regards her as being disrespectful, dishonest, cruel, and acting against the child’s best interests. This attitude towards the wife – together with the husband’s wish to assume primary care for the child – raises real concerns that the husband may seek to remove the child from the wife’s care and take him from Australia.
It is the wife’s case that the husband has significant financial resources. As at August 2021, the husband earned around $2,700,000 per annum. The wife asserted there is a real possibility the husband would utilise his significant financial resources to remove the child from Australia to Country J. Additionally, it was submitted that the husband may have some elevated privilege in Country J as a professional sportsman, thus providing him with greater opportunities to remove the child and/or retain him in Country J. That appears to be somewhat supported by the reference in the decision of the Family Court in City H to the husband being of great national importance at [132].
There is, in my view, a real risk that the husband may seek to retain the child in his care, and to remove the child from Australia. The husband’s failure to participate in these proceedings further raises my concern that he may not respect the determination of this Court regarding the care arrangements for the child. It also means he has not provided this Court with any reassurances that he would neither seek to remove the child from Australia, or that he would return him to Australia if the child were to travel to Country J or elsewhere abroad to spend time with his father.
In all the circumstances I could not have confidence the husband would return the child to the wife in compliance with any orders I make if he were to have unsupervised time with the child in Australia or elsewhere. I also cannot have confidence that the husband would not attempt to remove the child from Australia. He has made it plain that;
(a)he regards the wife as a deficient parent;
(b)he regards the child’s best interests as being met by living primarily with him, presumably in Country J; and
(c)he does not regard himself as bound by the orders of this Court.
Country J is not a signatory to the Hague Convention on the Civil Aspects of Child Abduction. If the husband removed the child to Country J, I am satisfied the wife would likely face considerable obstacles to secure the child’s return to Australia. This concern is amplified by the criticisms made of the wife by the Family Court in City H.
I note the reference in the judgment of the Family Court in City H to there being a “criminal case … pending” in Country J against the wife. I do not know what for. I note that in the judgment of the Family Court in City H, delivered in late 2023, it is recorded:
61.The cheating, fraud, extortion, threats, misappropriation of monies, and breach of trust by the [wife] … were essentially criminal in nature.
Given the reference to criminal proceedings against the wife in Country J, I anticipate she would be most reluctant to travel to Country J to agitate for the child’s return if he was removed from her care and taken there. As set out, I do not know with what offences the wife has been charged or what penalty, if any, the wife might receive if convicted. I do not know whether she would be arrested if she travelled to Country J.
The husband has demonstrated a disregard for the decisions that have already been made in this Court. This includes my interim reasons made on 24 February 2023 requiring the husband to discontinue his proceedings in Country J with respect to the child.
For these reasons, I have significant concerns that the husband would seek to remove the child from Australia and refuse to acknowledge the authority of this Court.
In those circumstances, I agree with the wife’s position that time between the husband and the child needs to be supervised. If time proceeded unsupervised, I am satisfied there is an unacceptable risk that the husband will seek to remove the child from Australia. As already noted, given the child has lived his life here, and has at all times been cared for by the wife, the impact on him would be profound.
It may be that at some point in the future, the risk that the child might be removed from the wife’s care/from Australia decreases. The tension and distrust between the parties may resolve. The child will become older and better able to protect himself. It may become appropriate at some point in the future for time to progress to unsupervised, or even to occur abroad. However, in the absence of any material and/or reassurances from the husband I cannot predict now when that might be.
I will accordingly order supervised time to occur at L Contract Service or such other supervised contact service as agreed by the parties; that the visit take place in a public location; that the husband pay for the costs of supervision; and the husband to provide no less than seven days’ notice of his intended travel to Australia.
Communication
The child’s communication with the husband currently occurs twice weekly between 6.00 pm to 8.00 pm for up to 15 minutes or as otherwise agreed between the parties or requested by the child. The wife seeks the continuation of this arrangement.
It seems apparent to me that this arrangement is working for the parties and child, and I am content that it remain. No doubt this arrangement will alter over the years as the child grows older. If the parties or child consent to some other agreement, then the orders allow for alterations to be made.
Injunctions
The wife sought a restraint against the husband from publishing, uploading, or providing photographic or video footage of the wife and/or of the child on social media or any news publishing platform such as YouTube, Facebook, or Instagram.
At the hearing, counsel for the wife submitted into evidence an array of online newspaper articles featuring Instagram and YouTube videos of the parties and of the child, none of which had been uploaded by the wife. These articles featured headlines such as “Relationship between [Mr Bhasin] and [Ms Bhasin] gets dirty, estranged mother threatens to ruin his career” and that the wife was seeking to defame the husband.
One of the publications brought to my attention by counsel for the wife had attached a video that the husband shared on his Instagram account of him and the child for the child’s birthday. The caption on the Instagram post read:
[Quote omitted to comply with s 121 of the Family Law Act.]
This Instagram post, at the time it was utilised by the publishing outlet, had around 345,083 likes and about 1,146 comments on the post.
A screenshot of a YouTube video has a description underneath that not only refers to the parties’ strained relationship but invited viewers to comment on the video on “this relationship between father and son”.
At the time of this video being screenshot and tendered into evidence, it had garnered around 178,179 views.
It is clear that the husband has not acted in a child focussed manner in putting photos of the child or information about the parties’ relationship online. The child could simply search his or his parents’ names on the Internet or on social media to find troubling content being published about his family, criticisms being made of his mother, and comments made by the public. This could be very confronting and upsetting for the child.
In the circumstances it is appropriate that the husband be injuncted from posting, publishing, or providing any photographs or video footage of the wife or of the child to any news/publishing companies or on any social media platforms, including but not limited to YouTube, Facebook, or Instagram.
The wife also sought the husband be restrained from having another adult present at supervised time.
It is the wife’s evidence that the husband often has another adult present when he is with the child who takes photographs and videos of the husband and of the child. The wife said the child has indicated that this behaviour makes him uncomfortable.
In discussion with counsel there was no real opposition to the husband attending time with a family member. However, in the absence of any evidence from the husband I do not know who else he intends to bring to spend time with the child, or why that would be appropriate.
In the circumstances, I am prepared to make the restraint as sought, save that the husband can attend with a family member, provided he has put the wife on notice as to who that family member will be.
The question of travel and the Airport Watch List
The wife sought the child be placed on the Airport Watch List until he turns 18 in 2031.
As indicated, I have real concerns about the risk the child will be removed from Australia by his father, and thereafter retained outside the jurisdiction.
As submitted by counsel for the wife, should the child be removed from Australia and potentially permanently separated from his mother, his sisters, and maternal grandparents, it would likely be “catastrophic” for the child.
The wife is aware of the implications of the child being placed on the Airport Watch List until he is 18. She understands that it means she will not be able to travel overseas with the child without a court order.
Given the husband’s status and financial resources, this is a matter in which a cautious approach should be adopted. In my view it is appropriate the child be placed on the Airport Watch List until he turns 18. Circumstances may change, and the child may wish to travel outside of Australia at some point in the future. If that occurs, the matter will need to return to Court.
THE WIFE’S ENFORCEMENT APPLICATION
The wife seeks the enforcement of:
(a)the s 90C Financial Agreement between the husband and the wife dated 29 August 2022; and
(b)orders made 21 September 2021 in relation to spousal maintenance and child support.
The Financial Agreement
It is the wife’s case that the Financial Agreement meets the statutory requirements and that it is binding, valid, and enforceable.
Importantly, clause 3(d) of the agreement provides:
The parties agree that the petition for seeking divorce under [the relevant legislation] will be executed contemporaneously with this Agreement and the Consent Orders marked Annexure C to this Agreement (Consent Orders), and the fully executed copy of the petition seeking divorce will be held in escrow by [the husband’s Australian solicitors] pending the making of the Consent Orders by the Federal Circuit and Family Court of Australia.
Neither party executed the petition for divorce contemporaneously with executing the agreement.
The wife said to the extent there are issues with clause 3(d) of the agreement, that clause is severable. Alternatively, she asserted that clause 3(d) is not an essential term and that any breach of it is not sufficient to amount to a repudiation of the agreement by her such that the husband was able to terminate the agreement.
The agreement also provided that the property at Suburb D shall be transferred into the wife’s sole name, upon the earlier of either 30 days after the second motion of divorce pursuant to the relevant marriage legislation, or 24 months from the date of the agreement. The wife said that transfer should occur now.
Whilst the husband did not participate in these proceedings, he indicated at an earlier hearing that he did not regard himself as bound by the agreement.
Doing the best I can to glean from the documents he previously filed, and based on submissions made by counsel when he did attend hearings earlier this year, it appears he may have argued:
(a)clause 3(d) was an essential term, and the wife’s failure to comply with the clause amounted to a repudiation and he accordingly terminated the agreement; and/or
(b)the agreement should be set aside as the wife engaged in unconscionable conduct and subjected him to duress and pressure.
Whilst the agreement meets the legislative requirements set out in s 90G(1) of the Family Law Act, for the reasons that follow, I am satisfied that the agreement should be set aside entirely pursuant to s 90K(1)(b), being that the agreement is “void, voidable or unenforceable”.
In those circumstances I do not need to consider the additional arguments advanced by the wife regarding the severability of clause 3(d), or the consequences of the breach of that clause.
Is the agreement unenforceable?
Section 90K sets out the circumstances in which the Court may order a financial agreement be set aside. Section 90KA provides that the question of whether a financial agreement is valid, enforceable or effective is to be determined in accordance with the principles or law and equity that apply in determining the validity, enforceability and effect of contract.
After careful consideration, I am satisfied that there are such serious problems with the way in which the agreement has been drafted, that the agreement is unenforceable and must be set aside pursuant to s 90K(1)(b).
Clause 2(a) – payment of monies
Clause 2(a) of the Financial Agreement provides:
(a)Pursuant to the Consent Orders to be made in the Federal Circuit and Family Court of Australia and set out at Annexure C hereto, [the husband] will pay to the trust account of [the wife’s] solicitors … the sum of $2,636,500 (the Payment) and the additional sum of $142,496 (the Interim Lump Sum Payment) …
(Emphasis in original)
The wife seeks to enforce the payment to her of “the Payment” and “the Interim Lump Sum Payment” within 14 days.
Clause 2(a)(i) provides “the Payment” was to be transferred from her solicitor’s trust account and to the wife on the “the Payment Date”. That date was defined in the agreement to be the earlier of the following events:
…
(A) [The husband] advising [the wife] … of the Second Motion of the divorce pursuant to [a specific section in the relevant legislation]; or
(B) The date 8 months from the date of this Agreement.
There is no section as detailed above in the relevant legislation. A different section is the relevant section dealing with divorce by mutual consent.
The parties’ divorce pursuant to this section was not pursued and there has been no second motion of the divorce under that section. The husband has recently obtained a divorce pursuant to another section on the grounds of cruelty.
Accordingly, “the Payment Date” must be 29 April 2023.
In relation to the Interim Lump Sum Payment, pursuant to clause 2(a)(ii) – and “[p]ending the Payment Date” – the agreement provided that the husband would be “liable for” the interim spousal maintenance and urgent child maintenance as ordered on 9 September 2021. All amounts accrued pursuant to those interim orders were to be paid to the wife from the interim lump sum payment, at the rate of $11,287 per month together with the home loan payments and the child’s school fees. Any balance remaining from that interim lump sum payment as at the payment date was to be returned to the husband.
Neither of those payments were ever made to the wife’s solicitors. Moreover – and crucially – the consent orders were also never made, as the husband withdrew his consent to same being made in December 2022.
Discussion as to enforceability
Counsel for the wife advised the reason consent orders were to be made was to enable the husband to move funds from Country J to Australia. It was submitted there is a cap on financial transfers out of Country J. However counsel said it was understood that if a person was required by another country to remove funds, the cap would not apply – and court orders could be regarded as imposing a requirement that a person remove funds. He said, accordingly, the making of the consent orders was merely the mechanics to enable the funds, which were to be paid to the wife via her solicitors, to be removed from Country J.
Counsel for the wife said further that the obligation for the husband to make the payments existed whether or not the consent orders were made. He said the correct construction of the agreement was that the minute of proposed consent orders formed part of the agreement, noting in particular Recital Q which set out that the parties will sign and submit the consent orders to the Court.
Regrettably, I do not agree.
The obligation to make both the payment and the interim lump sum payment is expressed as being pursuant to “Consent Orders to be made”. In my view, the husband’s obligation to make the payments to the wife’s solicitors did not arise from the agreement, but arose from the consent orders which were to be made, to which the agreement referred.
I must give the words in the agreement their ordinary meaning. The parties, both represented, chose the wording “[p]ursuant to the Consent Orders to be made”. They could have chosen different wording. For example clause 2(a)(i) could have provided that the husband would pay the monies “pursuant to a Minute of Proposed Consent Orders signed by the parties and set out at Annexure C hereto”. But it does not provide for that. It provides for the payment to be made “[p]ursuant to the Consent Orders to be made”.
The words “to be made” make it clear that the parties expected to execute the agreement first and the orders (pursuant to which the payments would then be made) would be made subsequently by consent.
The orders were not subsequently made. In circumstances where the orders, pursuant to which the funds were to be paid, were never made, there cannot be any obligation to make either the payment of $2,636,500 or the additional interim lump sum payment.
As already observed, I cannot make the proposed consent orders. The husband clearly withdrew his consent to those being made in December 2022.
There is nothing to enforce.
Can clause 2(a)(i) be severed?
It was submitted that rather than set aside the whole agreement, it was possible that clause 2(a)(i) could be severed from the agreement. It was submitted by counsel for the wife that the balance of the agreement – including the transfer to the wife of the Suburb D property set out in clauses 2(c) and (d) – would and should remain.
However, I am not satisfied that clause 2(a)(i) can be severed for the following reasons.
First, clause 2(a)(i) is an essential term. Clause 4 sets out the wife’s entitlements under the agreement. They include “the Payment”. It is a significant payment. It appears from the agreement as a whole that the promise for the payment of $2,636,500 from the husband to the wife was so important that the agreement would not have been entered into unless that promise was to be performed.
Secondly, clause 2(a)(ii) refers to events “[p]ending the Payment Date”. If clause 2(a)(i) is severed, there is no definition of a payment date. Clauses 2(a)(ii)(A), (B) and (C) and clause 2(b) refer back to the interim lump sum payment, the payment, and the payment date, all defined in clause 2(a)(i). Those clauses are meaningless if clause 2(a)(i) is severed.
If clauses 2(a) and (b) were both severed, then under the terms of the agreement the wife would be unable to seek any other payment from the husband. Her entitlement would be limited to the equity in the Suburb D property, her car, and her superannuation entitlements. This would be inconsistent with clause 4. The Court’s jurisdiction to make any other order – including orders for spousal maintenance – would be excluded. In light of the terms of the agreement it appears that at least at the time the parties executed the agreement they intended for the wife to receive a considerable cash payment in addition to the equity in the Suburb D property.
I further note that the wife’s suggestion that clause 2(a)(i) could be severed was an oral submission made, without notice to the husband.
Clause 2(c) – the transfer of Suburb D property
In light of my determination that clause 2(a) is not severable, and that the agreement is unenforceable, I do not need to consider the wife’s contentions regarding her application for the immediate transfer of the Suburb D property to her, or her oral application that the property be sold, and the net proceeds paid to her.
The wife will need instead to amend her Initiating Application, and specify what orders she seeks pursuant to s 79 of the Family Law Act. She will need to file an affidavit setting out the evidence she relies on as to her contributions and needs in support of those orders. The husband will also need to be served.
Enforcement of the child maintenance and spousal maintenance orders
The wife also sought the enforcement of the orders made 9 September 2021 which relevantly provided as follows:
Spousal maintenance
4. The respondent husband pay or cause to be paid by way of interim spousal maintenance the sum of $8,750 per month to the applicant wife.
5. The respondent husband pay the mortgage payment for the [Suburb D] property as and when they fall due, directly to the mortgagee, [E Bank].
6. The respondent husband pay or cause to be paid a fixed amount of $500 per month to the applicant wife towards the [Suburb D] property rates and home insurance.
Urgent child maintenance
7. Pursuant to section 139 of the Child Support (Assessment) Act 1989 (Cth), the respondent husband pay or cause to be paid the following:
(a) by way of urgent child maintenance in respect of [X] born […] 2013 (“the child”) the sum of $2,037 per month to the applicant wife;
(b)to [F School], all fees in respect of the child upon receiving an invoice and make all necessary arrangements with the school to receive copies of all future invoices in relation to the child;
(c) the child’s school uniforms upon receiving a receipt or tax invoice and reimburse the applicant wife for any such expenses incurred by her from the date of these orders.
I understand the husband paid the mortgage, spousal maintenance, child support and monies towards the rates and insurance on the property up until May 2023, and the child’s school fees up until April 2023. However, the husband ceased making all payments in accordance with the orders of 9 September 2021 at that time. He has not made any payments since.
In relation to the orders for spousal maintenance, those orders have not been discharged or varied. Accordingly, the husband should have paid:
(a)the sum of $8,750 per month to the wife (which at the time of judgment is eight months in arrears), being a total outstanding of $70,000;
(b)the sum of $500 per month for rates and maintenance of the property; being a total of $4,000; and
(c)in addition, the wife’s solicitors informed the Court that as at 29 November 2023 the husband had failed to make mortgage payments totalling $43,390 since he ceased making the payments as required under the interim order. The husband should also have paid those funds.
Those monies are due and owed to the wife. Orders 4, 5 and 6 of the orders made on 9 September 2021 remain in full force and effect and accordingly ongoing payments are still required to be made. The husband is to make the payments forthwith.
In relation to the child maintenance orders, the orders are expressed to be made pursuant to s 139 of the Child Support (Assessment) Act1989 (Cth). That section provides:
(1)Where, at any time after an application has been made to the Registrar for administrative assessment of child support for a child (whether or not the Registrar has accepted or refused to accept the application), a court having jurisdiction under this Act is of the opinion that the child is in urgent need of financial assistance, the court may order the payment of such periodic or other amount as the court considers appropriate.
The power to make an order under that section is enlivened only after an administrative assessment has been sought but not yet determined. Once the assessment has been made, an order made under this section lapses, and the payer’s obligation to pay is as determined in the child support assessment.
Counsel for the wife advised that no administrative assessment of child support was ever made to the Registrar. Accordingly, the orders made on 9 September 2021 in relation to the support of the child were made without power, and are therefore unenforceable.
COSTS
The wife sought orders that the husband pay the wife’s costs of and incidental to her Amended Application in a Proceeding filed 7 March 2023 on an indemnity basis fixed at $26,936.71. That was in relation to her anti-suit injunction application determined on 24 February 2023.
Pursuant to orders made on 24 February 2023, the wife was required to file and serve an application for costs together with written submissions to be forwarded to my chambers before 27 March 2023.
The husband was required to do the same or by reply to the wife’s submissions for costs by 4 April 2023.
While the wife’s material was filed and served on the husband on 27 March 2023, my chambers did not receive a forwarded copy of the same. Nor was my chambers advised that the submissions had been filed. Accordingly, I was unaware any costs application had been made.
The husband has not filed any material with respect to the wife’s submissions on costs and I understand my chambers have not received any communication from the husband arising from the wife’s application for costs.
Should a costs order be made?
Section 117(1) of the Family Law Act sets out the usual rule that parties bear their own costs. Pursuant to s 117(2), however, the Court can depart from that usual rule if there are circumstances that justify that departure. If so, the Court can then make such order as to costs as it considers just.
When considering whether to make a costs order, if any, I must have regard to the considerations set out in s 117(2A).
None of the parties were assisted by legal aid.
Since April 2023, the husband has ceased making payments towards the child’s support and school fees. The wife has recently recommenced employment as a contractor and deposed that she earns around $5,000 per month. The wife also deposed that her employment is variable and dependent on demand for her work. She has had to bear the costs of the child’s school fees, maintenance and mortgage repayments on the Suburb D property which has an equity of around $770,000. At the trial, counsel for the wife raised that there is a real risk she might not be able to continue paying the mortgage. The husband’s determination to continue proceedings in the Family Court in City H, Country J has meant the wife has had to not only bear the costs of continuing proceedings in Australia but to also respond to the husband’s applications in the City H Family Court.
The husband is a well-known professional sportsman earning a large sum per annum.
There is no criticism made of the wife’s conduct as a litigant. Conversely, the husband filed documents in relation to the anti-suit hearing late, and filed an Amended Response on the morning of the hearing.
The husband was wholly unsuccessful in defending against the anti-suit injunction.
The wife’s solicitors sent correspondence to the husband on 6 February 2023 in which she indicated she would make an anti–suit injunction application – and seek costs – in the event the husband refused to discontinue the proceedings in Country J. That was rejected by the husband. I note the wife in that correspondence sought that the husband discontinue all proceedings in Country J, being parenting proceedings and an application for divorce.
On what basis should a costs order be made?
If a costs order is to be made, the general rule is that costs will be calculated on a party/party basis.
In this case, indemnity costs are sought. The wife’s legal fees calculated in accordance with the costs agreement she has with her solicitors are $26,936.71 of and incidental to the anti-suit injunction application. That comprises $16,716 in solicitors’ fees, $9,473 in counsel’s fees and the balance by way of disbursements.
Case law makes it plain that it will only be in exceptional circumstances that indemnity costs will be ordered (Kohan and Kohan (1993) FLC 92-340; D & D (Costs) (No. 2) (2010) FLC 93-435; Limousin & Limousin (Costs) [2007] 38 Fam LR 478). I would need to be satisfied that there was something special or unusual in the matter that might justify the awarding of indemnity costs before determining to exercise my discretion to do so, as it is a very significant departure from the usual rule.
Sheppard J provided some examples of circumstances that might attract an award of indemnity costs in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225. Holden CJ in Munday v Bowman (1997) FLC 92-784, at 84,660, drew from his Honour’s decision these examples:
(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.
(Citations omitted)
It was submitted by the wife that the husband opposed the anti-suit injunction in circumstances where, properly advised, he should have known he had no chance of success. That is particularly so given that the husband had consented to jurisdiction in relation to property, and where the child was clearly habitually resident in Australia.
In my view, circumstances do justify departing from the usual rule that each party bears his or her own costs.
The husband was wholly unsuccessful. He filed material late. He was on notice that the wife would seek costs if he did not discontinue proceedings in Country J – although what was sought in that correspondence was that the husband discontinue all proceedings there. Ultimately, the orders I made were that he be restrained from seeking parenting orders in Country J.
The wife issued the anti-suit injunction application on 9 February 2023. The matter was before me on 10 February 2023. At that time, I indicated the wife’s application to injunct the husband regarding parenting proceedings in Country J appeared highly likely to succeed in circumstances where the child was habitually resident in Australia and had lived here for the vast majority of his life. In my view, it was not reasonable that the husband did not consent to the wife’s application in all the circumstances.
However, I am not satisfied that this falls into the category of cases where indemnity costs are appropriate.
Rule 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) allows me to fix an amount for costs. In making an order under r 12.17(1), as I am, I may consider:
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness of each party’s behaviour in the proceeding including by having regard to the matters set out in subrule 12.08(2);
(c) the rates ordinarily payable to lawyers in comparable proceedings;
(d) whether a lawyer’s conduct has been improper, unfair, unreasonable or disproportionate;
(e) the time properly spent on the proceeding, or in complying with pre-action procedures;
(f) whether expenses (paid or payable) are fair, reasonable and proportionate.
An anti–suit application has some complexity. It was not, in my view, reasonable for the husband to oppose the application. In the exercise of my very broad discretion, I am satisfied the husband should pay the sum of $10,000 by way of costs.
I certify that the preceding one hundred and eighty-five (185) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 5 December 2023
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