Chauhan & Hora

[2021] FCCA 1370

FEDERAL CIRCUIT COURT OF AUSTRALIA

Chauhan & Hora [2021] FCCA 1370

File number(s):	MLC 5198 of 2020
Judgment of:	JUDGE MCNAB
Date of judgment:	15 June 2021
Catchwords:	FAMILY LAW – costs – mother filed an application in a case to dismiss final parenting and property consent orders – application should have been to set aside consent orders – application in the wrong form – mother has failed to file proper material – mother has failed to prosecute her case – application summarily dismissed by Registrar – application devoid of merit – mother wholly unsuccessful in her application – appropriate that the mother pay the father’s costs of and incidental to the application on scale
Legislation:	Federal Circuit Court Rules 2001 (Cth) rr 13.10, 16.05
Number of paragraphs:	14
Date of hearing:	15 June 2021
Place:	Melbourne
The Applicant:	No Appearance
Counsel for the Respondent:	Mr S Fuller
Solicitor for the Respondent:	ANU Law

ORDERS

MLC 5198 of 2020

BETWEEN:

MS CHAUHAN

Applicant

AND:

MR HORA

Respondent

ORDER MADE BY:	JUDGE MCNAB
DATE OF ORDER:	15 JUNE 2021

THE COURT ORDERS THAT:

1.The Applicant pay the Respondent’s costs for the hearings on 11 May 2021 and this day, 15 June 2021 fixed in the sum of $6058.50.

2.All extant applications otherwise be dismissed.

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 under the pseudonym Chauhan & Hora is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
(Delivered Ex Tempore – Revised From Transcript)

Judge McNab:

INTRODUCTION

1. On 11 May 2021, Registrar Sudholz made orders in this matter that an application in a case filed by the Applicant Mother on 21 December 2020 be dismissed, pursuant to r13.10 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). The Registrar also made orders reserving the question of the Respondent Father’s costs of the application to today.

2. The Mother has not appeared today and the Father was represented by Mr Fuller of Counsel.  I accept that the Mother has received notice of the hearing today, and I refer to an affidavit of service of Mr B filed on 15 June 2021.  By that affidavit, Mr B deposes that he served copies of the orders made on 11 May 2021 on the Mother by email on 14 May 2021. The Father gave evidence that the email addresses referred to in that affidavit are those used by the Mother, and have been used by her to communicate with the Father during the course of these proceedings. I am satisfied that the Mother was served with the orders made on 11 May 2021 within 7 days of the hearing on that day, pursuant to order 4 of those orders.

3. The Court must now determine the question of the Father’s costs.

   CONSIDERATION

4. On 19 December 2020, the Mother filed an application in a case seeking orders as follows:

   1. That Consent Orders made in or around 17 September 2020 be dismissed.

   2. That the parties file new Consent Orders by 10 January 2021, failing which the matter be set down for an interim hearing.

5. The Father filed a response on 10 May 2021 seeking that the Mother’s application be dismissed and that the mother pay the Father’s costs of and incidental to the application.

6. Final consent orders were made in this matter on 25 August 2020. Those orders dealt with both parenting and property matters, and the Father has acted in accordance with the orders and paid monies pursuant to those orders.

7. The Mother’s application is, on its face, incompetent. It is seeking that consent orders be dismissed rather than seeking that the consent orders be set aside pursuant to r16.05 of the Rules. In support of the application the Mother filed an affidavit on the same day in which she deposes that she was unwell at the time the consent orders were made and that she was under duress when she agreed to the consent orders, which were drafted by the Father’s solicitors. The Mother says at [6] – [7] of her affidavit that:

   6. To settle our property matters in Australia [the Father] organised an Australian lawyer to interview me.

   7. On 17 August 2020 I had a Zoom meeting with Ms C. Ms C was not aware that:

   (a) I was not in the room alone with her on the Zoom call. I advised her multiple times I was;

   (b) That I was not well;

   (c) That I was scared and being forced to agree to Consent Orders drafted by [the Father’s] lawyers.

8. The Mother’s affidavit does not go into any detail beyond that set out and I find that there was no error in the decision made by Registrar Sudholz to summarily dismiss the application. 

9. The Mother’s application is in the wrong form.  It ought to have been brought as an initiating application rather than an application in a case, as the matter was finalised once final consent orders were made on 25 August 2020.

10. In orders made on 22 March 2021 by Registrar Sudholz there is a notation as follows:

    B. Should the Wife seek to set aside orders made by consent on 25 August 2020, she will need to file the correct documents, specifically an Initiating Application together with supporting Affidavit, a Financial Statement and a Notice of Child Abuse, Family Violence and Risk.

11. The Mother did not file any further material and, indeed, did not appear on 11 May 2021 at the hearing before the Registrar.

12. In my view, it is appropriate that the Mother pay the Father’s costs on scale. There has been a failure by the Mother to prosecute her application both on 11 May 2021 and today. As set out above, I am satisfied that the Mother was served with copies of the orders made on

    
    

    11 May 2021.  The Mother has been wholly unsuccessful in her application, and otherwise the application is devoid of merit as was found by Registrar Sudholz at the hearing on 11 May 2021. For those reasons the Mother should pay the Father’s costs of the application, and I refer to the scale of costs which was provided to the Court by the Father in a proposed minute of orders this morning.

13. In that minute of proposed orders, the Father seeks costs of and incidental to the Mother’s application in the sum of $6,058.50. That amount is sought on scale on the following basis:

No	Item	Description	Amount
1	1(a)	Initiating application or opposing an application up to the completion of the first court date	$2,241.00
2	1(b) / 13	Hearing on 22/3/21 – daily hearing fee ($305.00) + advocacy loading ($560.00)	$457.50
3	12 & 13	Hearing on 11/5/2021 – daily hearing fee ($1,120.00) + advocacy loading ($560.00)	$1,680.00
4	12 & 13	Hearing on 15/6/2021 – daily hearing fee ($1,120.00) + advocacy loading ($560.00)	$1,680.00
Total			$6,058.50

1. I find that it is appropriate that the Mother pay the Father’s costs fixed in the sum of $6058.50, and I will make orders in the terms proposed by the Father in the minute of orders provided to the Court.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab.

Associate:

Dated:       18 June 2021